dismissed EB-2 NIW Case: Fitness

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUN. 15, 2023 In Re: 26928622 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a fitness specialist, 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. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is eligible as an individual of exceptional ability. In addition, the Director 
determined that the Petitioner is not eligible for, and does not merit as a matter of discretion , 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 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, 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. 
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 
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 aliens of 
exceptional ability. 6 USCIS Policy Manual F.5(8)(2) , https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
in its totality shows that they are recognized as having a degree of expertise significantly above that 
ordinarily encountered in the field. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then establish 
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 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 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. 
TT. INDIVIDUAL OF EXCEPTIONAL ABILITY 
A. Evidentiary Criteria 
The Director 
determined that while the Petitioner met the evidentiary criteria under 
8 C.F.R. §§ 204.5(k)(3)(ii)(A), (C) and (D), the evidence did not establish that he has a degree of 
expertise significantly above that ordinarily encountered in his field. On appeal, the Petitioner points 
out several errors in the Director's decision, and asserts that the Director did not consider the totality 
of the evidence when conducting his final merits determination. After review of the record, we 
conclude that the Petitioner does not meet the requisite three criteria, and agree that he has not shown 
that he has a level of expertise in his field sufficient to meet the standards of the requested 
classification. 
Regarding the errors in the Director's decision, the Petitioner notes that he is referred to by the 
incorrect pronoun in several places in the decision, and that the final merits determination states that 
he has a pilot's license. Although these errors are regrettable and reflect insufficient editing of the 
written decision, we do not find that they are material to the Director's conclusions about the 
Petitioner's eligibility. The Director repeatedly refers to the Petitioner's correct field and proposed 
endeavor as a fitness specialist, and analyzes his certifications as a health coach and personal trainer 
in the corresponding evidentiary criterion. 
An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award fiwn a college, university, school, or other institution of learning 
relating to the area ofexceptional ability; 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The Director concluded that the Petitioner met this criterion, but did not provide an analysis in his 
decision. In responding to the Director's request for evidence (RFE), the Petitioner based his claim to 
this criterion on certificates he received from three organizations: the National Personal Training 
3 See also Poursina v. USCJS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionmy in nature). 
2 
Association (NPT A), the International Federation of Body Builders (IFBB), and the American Sports 
and Fitness Association (ASF A). However, as these recognize the completion of certification exams 
relating to the Petitioner's occupation and proposed endeavor, they are properly considered under the 
evidentiary criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), which specifically calls for evidence of this type. 
The Director concluded that the Petitioner meets that criterion based upon this evidence, and we 
concur. But as discussed below, we do not agree that the same evidence meets the requirements of 
this criterion. 
In its response to the Director's RFE, the Petitioner referred to a definition of the term "institution of 
higher learning" at 38 U.S.C. § 3452(f). We first note that Title 38 relates to veterans' benefits, and 
the Petitioner has not shown that this statutory definition is applicable to the requested classification 
or immigration benefits in general. In addition, the Petitioner focused on a portion of this definition: 
When there is no State law to authorize the granting of a degree, the school may be 
recognized as an institution of higher learning if it is accredited for degree programs by 
a recognized accrediting agency... Such term shall also include an educational 
institution which is not located in a State, which offers a course leading to a standard 
college degree, or the equivalent, and which is recognized as such by the secretary of 
education ( or comparable official) of the country or other jurisdiction in which the 
institution is located. 
The Petitioner argued that as state legislation does not exist for the accreditation of personal trainers 
such as the Petitioner, other accredited organizations, including the organizations from which he 
received certificates, can meet the definition of "institution of higher learning." However, even if the 
above definition was applicable, it specifically refers to "degree programs" and institutions which offer 
"a course leading to a standard college degree," and the record does not show that any of these 
organizations offer degree programs or college degrees, and thus would not qualify as institutions of 
higher learning under this definition. 
The phrase "institution of learning" appears elsewhere in the immigration regulations at 
8 C.F.R. § 245a.3(b)(5)(i)(A) in the context of study programs to meet the requirements for an 
application to adjust to permanent resident status, and that section indicates that such programs may 
be conducted by "an established public or private institution of learning recognized as such by a 
qualified state certifying agency." While the Petitioner asserts that the NPT A is accredited by the 
National Commission for Certifying Agencies (NCCA), the record does not demonstrate that the 
NCCA accredits institutions oflearning as opposed to occupational certification programs. 4 Further, 
we note that the Petitioner did not submit documentary evidence of the NPTA's certification, and the 
NCCA website cited in the Petitioner's RFE response does not include the NPTA in its list of 
accredited programs. 
The Petitioner made similar arguments with respect to the IFBB and ASF A, and included a letter from 
the IFBB and a list of topics covered in the "Advanced Nutrition Specialist" certification course. 
4 The NCCA website, cited in the Petitioner's RFE response, states that the programs it accredits "certify individuals in a 
wide range of professions and occupations." www.credentialingexcellence.org/ Accreditation/Eam-Accreditation/NCCA, 
accessed on June 14, 2023. 
3 
However, as with NPT A, this evidence does not establish that these organizations are institutions of 
learning comparable to colleges, universities, and schools as opposed to occupational certification 
programs. Accordingly, we withdraw the Director's favorable conclusion and conclude that the 
Petitioner does not meet this criterion. 
A license to practice the profession or certification for a particular profession or 
occupation; 8 C.F.R. § 204.5(k)(3)(ii)(C) 
As noted above, we agree with the Director's determination that the Petitioner's certificates from 
NPT A, TFBB, and ASF A show his certification for his proposed endeavor as a fitness specialist, and 
that he meets this criterion. 
Evidence ofmembership in professional associations; 8 C.F.R. § 204.5(k)(3)(ii)(D) 
The Director determined that the Petitioner met this criterion based upon the evidence of his 
membership in the National Physique Committee (NPC), the National Wellness Institute (NWT), and 
the International Association of Coaching (IAC). While the record includes evidence that the 
Petitioner is or was a member of these associations, we disagree with the Director's conclusion that 
they qualify as professional associations. 
The regulation at 8 C.F.R. § 204.5(k)(2) defines "profession" as any occupation having a minimum 
requirement of a United States bachelor's degree or foreign equivalent degree for entry into the 
occupation. However, the record does not show that the Petitioner possesses a bachelor's degree, or 
that any of the entities of which he is a member require their members to be professionals as defined 
in the regulations. In his RFE response, the Petitioner referred to a definition of "professional 
organization" obtained from a website, noting that they typically organize conferences or workshops, 
have online learning resources available, publish newsletters or journals, and provide their members 
resources to earn continuing education units in order to maintain their license or certification. While 
many professional associations have these features, this definition does not address the membership 
requirements of those associations or the definition of "profession" in the regulation. 
In addition, none of the materials submitted by the Petitioner show the minimum requirements for 
membership. Pages from the website of the NWI states that it is "the leader in providing professional 
development and engagement opportunities that support individuals from a variety of disciplines in 
promoting whole-person wellness." The same type of information from the IAC indicates that it 
"provide(s) a highly accountable professional development model for aspiring and experienced 
coaches, as well as professionals in other fields, so their mastery of coaching is valued and contributes 
to evolving human potential worldwide." 5 While both use the term "professional" and describe 
educational and development programs, neither discusses membership requirements or suggest that 
members must hold a bachelor's degree or equivalent credentials. 
5 The record does not include documentary evidence relating to the NPC, but only references links to websites in the 
Petitioner's RFE response. 
4 
Because the evidence does not demonstrate that these entities require their members to be professionals 
as defined in the regulations, they do not qualify as professional associations. We therefore disagree 
with the Director and conclude that the Petitioner does not meet this criterion. 
Evidence ofrecognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations; 
8 C.F.R. § 204.5(k)(3)(ii)(F) 
In his decision, the Director noted the reference letters submitted by the Petitioner in support of this 
criterion, but concluded that they showed only that he has benefitted his clients in terms of fitness and 
diet, and did not show recognition for achievements and significant contributions to the field. On 
appeal, the Petitioner asserts that the letters did show the impact of his work on the fitness industry, 
and that evidence of a media article about him and his role as a brand ambassador also should have 
been considered to be recognition for his achievements. 
Regarding the reference letters, we agree with the Director that they describe how the Petitioner was 
able to help the writers meet their fitness goals, but do not identify achievements and significant 
contributions to the field of fitness or personal training. For example, a letter froml Iwho 
works as a model, states that she followed the Petitioner's 1 I and was able to lose weight 
and gain muscle. Another letter was written by the owner of gym that employs the Petitioner as a 
personal trainer. He states that the Petitioner gives lectures and creates nutritional plans for his 
students, and encloses a document titled '~--------~ which is a meal plan created by 
the Petitioner. In addition, a martial arts trainer writes that he refers his clients to the Petitioner for 
the creation of meal and supplement plans, and notes the Petitioner's use of body scanning machines, 
mobile software applications, and widely available genetic tests. As noted by the Director, these 
reference letters and the others submitted do not recognize achievements and significant contributions 
to the fitness industry or field, but are limited to the personal fitness and wellness results of the writers 
or their students. While some vaguely describe what the Petitioner calls the '1 I' there is no 
indication in the letters or the balance of the record that this method is recognized as a significant 
contribution to the fitness and personal training field. Further, we note that formal certificates and 
other documentation that is issued contemporaneously with a petitioner's claimed contributions and 
achievements generally carry more weight than letters prepared for the petition. See generally 6 
USCIS Policy Manual F.5(8)(2), www.uscis.gov/policy-manual. 
The Petitioner also highlights other evidence on appeal, including his 'I mobile 
application. Although this evidence includes a single screenshot the availability of the app for 
download, the record does not include evidence showing that it is recognized as an achievement and 
significant contribution. The reference letter from the martial arts trainer mentioned above indicates 
that some of his students use it, but this is insufficient to show recognition for the type of industry­
wide contribution required under this criterion. 
Also highlighted on appeal is the brief article about the Petitioner and his work which appeared on the 
website of Brickell Magazine onl I2019. The article describes his business and use of a 
lin his work. However, it does not mention an achievement or contribution he has made 
to the fitness or wellness field, and the record lacks sufficient evidence about the intended audience 
5 
I 
and volume of readership of this magazine/website to show that the article is itself recognition in the 
Petitioner's field. 
Other evidence submitted by the Petitioner shows that he was a brand ambassador for two nutritional 
supplement businesses, helping to promote their products, and has nearly 40,000 followers on social 
media. However, this evidence does not identify any achievement and significant contribution to the 
fitness industry by the Petitioner that is being recognized by the businesses or the social media 
followers, as required by the plain language of this criterion. 
For all of the reasons discussed above, we agree with the Director and conclude that the Petitioner 
does not meet this criterion. 
B. Final Merits Determination 
Because the Director concluded in his decision that the Petitioner met the requisite three of the six 
evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii), he conducted a final merits analysis to determine 
whether the Petitioner had established that he possesses expertise significantly above that ordinarily 
encountered in his field. While we have concluded that the Petitioner does not meet three of the 
criteria, thus making a final merits determination unnecessary, we will briefly address this issue. 
In his analysis, the Director acknowledged the Petitioner's receipt of the certificates from the NPTA, 
IFBB, and ASF A, but noted that these types of qualifications are routine for individuals in many fields 
and inherent to the Petitioner's occupation. On appeal, the Petitioner questions why the criterion 
relating to degrees, diplomas and certificates is part of the initial evidence requirements if possession 
of these credentials is dismissed. As noted above, meeting at least three of the evidentiary criteria 
satisfies the initial evidence requirement for this classification, but a petitioner must still establish that 
the possess expertise significantly above that ordinarily encountered in their field, which requires an 
analysis of the quality of the evidence. See generally 6 USCIS Policy Manual F.5(8)(2), 
www.uscis.gov/policy-manual. As such, earning credentials that are considered to be the minimum 
requirement for entry into a field, or are commonly held by those in the field, does not meet the overall 
standard for this classification. The Petitioner has not established that his certifications place him 
significantly above the average fitness specialist. 
Regarding other evidence in the record, the reference letters indicate that several of the Petitioner's 
clients are pleased with this services as a fitness and nutrition coach, and his selection to promote the 
products of two businesses in his industry shows that he has garnered some level of attention in his 
field. However, the minimal evidence regarding these roles is insufficient to demonstrate that he has 
significantly grater expertise than other fitness specialists. For example, there is nothing to suggest 
that he was the only brand ambassador for these brands, nor was evidence submitted regarding the 
prestige of the brands he represented. Similarly, it is common for individuals and business to build a 
social media presence to promote themselves and their products and services, but the record lacks 
evidence to show how the Petitioner's social media following and influence compares to that of others 
in his field. 
The Petitioner has not shown that he meets the initial evidence requirements for this classification, 
and he also has not established that he has the level of expertise required for an individual of 
6 
exceptional ability. As he does not claim to be a member of the professions holding an advanced 
degree, and the record does not indicate that he is eligible as such, we conclude that he has not 
established his eligibility for the EB-2 classification. 
III. CONCLUSION 
The Petitioner has not established his eligibility for the EB-2 classification, and he is therefore not 
eligible for a national interest waiver. We therefore reserve our evaluation of his eligibility under the 
Dhanasar analytical framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it 
unnecessary to analyze additional grounds when another independent issue is dispositive of the 
appeal); see also Matter of D-L-S-, 28 I&N Dec. 568, 576-77 n. l 0 (BIA 2022) ( declining to reach 
alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The appeal is dismissed. 
7