dismissed EB-2 NIW Case: Fitness

U.S. Citizenship 
and Immigration 
Services 
In Re: 23069538 
Appeal of Texas Service Center Decision 
Non-Prece dent Decision of the 
Admi nistrative Appeals Office 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a fitness instructor and entrepreneur, seeks second preference immigrant classification 
as either an advanced degree professional or an individual of exceptional ability in the sciences, arts 
or business, as well as a national interest waiver of the job offer requirement attached to this EB-2 
classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1153(b)(2). After a petitioner has established eligibility for EB-2 classification, U.S. Citizenship
and Immigration Services (USCIS) may, as matter of discretion, grant a national interest waiver if the
petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit
and national importance; (2) that the foreign national 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. Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016).
The Director of the Texas Service Center determined that the Petitioner qualifies for the underlying 
classification, that her proposed endeavor has substantial merit, and that she is well positioned to 
advance her proposed endeavor. Nevertheless, the Director denied the petition, concluding that the 
evidence did not establish the national importance of the proposed endeavor or that a waiver of the 
requirement of a job offer would be in the national interest. Accordingly, the Director determined that 
the Petitioner had not established eligibility for a national interest waiver. 
The matter is now before us on appeal. The Petitioner reasserts her eligibility, arguing that the Director 
erred in the decision. In these proceedings, it is the Petitioner's burden to establish eligibility for the 
requested benefit. Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will dismiss 
the appeal. 
I. LEGAL FRAMEWORK
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. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver of job offer -
(i) National interest waiver .... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Section 10l{a)(32) of the Act, 8 USC § 1101(a)(32), provides that "[t]he term 'profession' shall 
include but not be limited to architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 101(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(i i). 
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Furthermore, while 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). In announcing this new framework, we vacated 
our prior precedent decision, Matter of New York State Department of Transportation, 22 l&N Dec. 
215 (Act. Assoc. Comm'r 1998). Dhanasar states that after a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest 
waiver as matter of discretion. See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th 
Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). As a matter of discretion, the national interest waiver may be granted if the petitioner 
demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national 
importance; (2) that the foreign national 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. See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three 
prongs. 
II. ANALYSIS 
The Director determined that the Petitioner qualifies for the underlying EB-2 classification. The 
remaining issue is whether the Petitioner has established that she is eligible for a national interest 
waiver. While we may not discuss each piece of evidence individually, we have reviewed and 
considered each one. The Petitioner proposes to continue operating her Florida-based fitness business, 
________ In so doing, she will offer Pilates classes, fitness programs, and in-house 
instructor training. 
Regarding the national importance of the proposed endeavor, the Petitioner offered numerous 
examples of how exercise and fitness improve physical and mental health. The Petitioner explained 
that the COVID-19 pandemic raised awareness of health-related issues and that as a result, the demand 
for fitness instructors and related services have increased. In particular, the Petitioner noted statistics 
concerning the economic impact and growth potential of the fitness industry and research findings that 
predict a future workforce shortage in the industry. She claimed that her proposed endeavor will 
improve the U.S. economy, asl lwill pay operational costs, income taxes, 
and wages to employees. To support her arguments, she provided a business plan that explained her 
company's business model, finances, growth potential, and revenue plans. In the business plan, the 
Petitioner claimed that her proposed endeavor will offer sustainable business practices, reduce 
unemployment, and fill a demand for physical fitness services. The Petitioner also explained that 
teaching and training others to work as fitness instructors will transfer important knowledge to them 
and create a talent pool upon which her business and the industry may rely. The Petitioner emphasized 
that her proposed endeavor promotes the standards the federal government set forth in the 
Occupational Safety and Health Act (OSHA). Specifically, she explained that health and physical 
fitness combats disease and disability, thereby enhancing workplace safety. In addition, the Petitioner 
referenced the importance of small businesses and immigrant entrepreneurs in the United States. 
In our de nova review of the record, we conclude that the Petitioner has not offered sufficient evidence 
to establish the national importance of her proposed endeavor. We acknowledge and agree that 
exercise and the fitness industry are important; however, this is not necessarily sufficient to establish 
the national importance of the proposed endeavor. As the Director explained in the decision, in 
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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." See id. at 889. Although the Petitioner offered numerous 
examples of how exercise and physical fitness services are nationally important, this does not 
sufficiently support a finding that her specific proposed endeavor has national importance. 
In addition to providing instruction to those engaging in a fitness program, the Petitioner proposes to 
offer classes to those interested in understanding more about physical health and exercise, as well as 
in-house training to fitness instructors. However, the Petitioner has not demonstrated that her 
proposed endeavor will impact the fitness industry as a whole, nor has she suggested that her services 
would be available on a scale that rises to the level of national importance. 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. While she may impact her individual clients and students, the Petitioner has not provided 
sufficient evidence to establish that her services will be broadly available. Rather, it appears that her 
proposed endeavor will operate on a scale affecting only those who pay for her services. 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. Likewise, while the 
Petitioner's services have value, she has not established how her activities would impact the exercise 
industry or the nation more broadly. 
The Petitioner predicted that she would create $1,434,647.50 in revenue, as well as 13.2 direct and 
indirect jobs by year five of her business. While we acknowledge these figures, the Petitioner does 
not adequately explain how she calculated them and as such, they appear to be little more than 
conjecture. Even if the Petitioner had provided a foundation for her projections, she would still need 
to establish how such figures represent economic activity that would rise to the level of national 
im ortance. Although she provided rural poverty statistics from a study conducted in the land 
regions of Florida, she has not provided sufficient evidence to establish that thel I 
and __ ___, regions are economically depressed. Even if she had, this would still not establish 
how her proposed endeavor would operate on such a scale as to positively impact the economic 
condition of the region. As the Director explained, the Petitioner has not demonstrated that her 
company's staffing levels, support of local contractors, and volume of activity will provide substantial 
economic benefits to the United States. Without sufficient evidence of projected U.S. economic 
impact or job creation 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 business would reach the level of 
"substantial positive economic effects" contemplated by Dhanasar. Id. at 890. 
We examined the advisory opinion from I I an adjunct professor of business, 
entrepreneurship, and sports management atl I He provided his opinion on the 
Petitioner's eligibility for a national interest waiver under the Dhanasar framework. I 
emphasized the shortage of physical educators and therapists, as well as the importance of physical 
education and the demand for it. He also concluded that the Petitioner's education, experience, and 
skills will enable her to meet this demand. However, I I has not offered a sufficient 
explanation for how the proposed endeavor will address or resolve workforce shortages in this area. 
In addition, the Petitioner's expertise acquired through her education and employment relates to the 
second prong of the Dhanasar framework, which "shifts the focus from the proposed endeavor to the 
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foreign national." Id. The issue here is whether the specific endeavor that the Petitioner proposes to 
undertake has substantial merit and national importance under Dhanasar's first prong. 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as 
advisory. Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject 
an opinion or give it less weight if it is not in accord with other information in the record or if it is in 
any way questionable. Id. We are ultimately responsible for making the final determination regarding 
an individual's eligibility for the benefit sought; the submission of expert opinion letters is not 
presumptive evidence of eligibility. Id. Here, lopinion focuses on the importance of 
the industry rather than the national importance of the specific proposed endeavor. Further, he focuses 
on the Petitioner's qualifications, which do not directly pertain to the national importance of the 
proposed endeavor. As such, his opinion is of little probative value in this matter. 
We reviewed the letters of recommendation from the Petitioner's clients, students, and professional 
colleagues. The authors of the letters praised the Petitioner's personal and professional qualities, the 
services she offered, her experience, and the results she achieved for those who worked with her. 
Some of the authors also praised her franchise success in Brazil. However, none of the authors 
demonstrated detailed knowledge of the proposed endeavor, nor did they demonstrate how it has 
national importance. Generalized conclusory statements that do not identify a specific impact in the 
field have little probative value. See 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). 
The submission of reference letters supporting the petition is not presumptive evidence of eligibility; 
USCIS may evaluate the content of those letters so as to determine whether they support the 
petitioner's eligibility. Id. See also Matter of V-K-, 24 l&N Dec. 500, n.2 (BIA 2008) (noting that 
expert opinion testimony does not purport to be evidence as to "fact"). Because the authors did not 
meaningfully address the national importance of the proposed endeavor, their letters are of limited 
probative value in this matter. 
On appeal, the Petitioner requests that we reach a different conclusion based upon the evidence and 
arguments already provided. While we acknowledge the importance of physical exercise in general, 
in addition to the Petitioner plans to offer valuable services in the fitness industry, the evidence 
provided does not sufficiently establish the national importance of the proposed endeavor. It is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 (AAO 2012). The Petitioner 
has not met her burden. 
Ill. CONCLUSION 
The documentation in the record does not establish the national importance of the proposed endeavor 
as required by the first prong of the Dhanasar precedent decision. Therefore, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of her eligibility under the 
Dhanasar framework would serve no meaningful purpose. 
Because the identified reasons for dismissal are dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve remaining arguments concerning eligibility under the second and third 
Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not 
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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 alternative issues 
on appeal where an applicant is otherwise ineligible). 
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. 
The appeal will be dismissed for the above stated reason. 
ORDER: The appeal is dismissed. 
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