dismissed EB-2 NIW Case: Fitness

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 03, 2025 In Re: 34832089 
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 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. 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 ofChristo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 
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 confinn ed 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 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. 
Id. at 889. 
II. ANALYSIS 
A. EB-2 Visa Classification 
The Director determined that the Petitioner does not qualify as an individual of exceptional ability. 
Because 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 he 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 undertake 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)(l), https://www.uscis.gov/policy-manual. 
The Director concluded that the Petitioner failed to establish that the proposed endeavor has substantial 
merit because the Petitioner materially changed the proposed endeavor in his response to the request 
for evidence (RFE). The Petitioner initially indicated that he would seek employment as an exercise 
trainer and group fitness instructor. He described his job as follows: "Instruct or coach groups or 
3 See Flores v. Garland. 72 F.4th 85, 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and D.C. Circuit Courts 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"). 
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individual (sic) in exercise activities for the primary purpose of personal fitness." However, in 
response to the RFE, the Petitioner submitted a May 2024 business plan indicating that he will 
establish a company focusing on providing and promoting health and wellness. Hence, the Petitioner 
did not initially indicate any intention to own and operate a business as the proposed endeavor. The 
Petitioner must establish all eligibility requirements for the immigration benefit have been satisfied from 
the time filing and continuing through adjudication. See 8 C.F.R. § 103.2(b)(l), (12); Matter ofKatigbak, 
14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Further, a petitioner may not make material changes to a 
petition that has already been filed in an effort to make a deficient petition conform to USCIS 
requirements. Matter ofIzummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 1988). Izummi further provides, 
citing Matter ofBardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come 
into being only subsequent to the filing of a petition." Id. at 176. Accordingly, we agree with the 
Director's determination that the Petitioner materially changed the proposed endeavor to opening, 
owning, and operating his own business. Thus, we will only address his initial proposed endeavor of 
instructing or coaching groups or individuals in exercise activities for the primary purpose of personal 
fitness. Consequently, we will not consider the Petitioner's materially changed proposed endeavor of 
opening, owning, and operating his own business. Nevertheless, as it relates to substantial merit, the 
endeavor's merit may be shown in a range of areas such as business, entrepreneurialism, science, 
technology, culture, health, or education. Dhanasar, 26 I&N Dec. at 889. Although the Director 
found the proposed endeavor did not possess substantial merit, the Petitioner provided several articles 
and industry reports on the fitness industry and its importance in stemming obesity and other medical 
conditions, thus reflecting that the endeavor falls within one or more of the areas contemplated by 
Dhanasar. Therefore, we determine that the initial proposed endeavor has substantial merit. 
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 specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Although the Petitioner 
provided articles and industry reports on health and fitness topics as well as the economic contributions 
of immigrant entrepreneurs, the Petitioner must demonstrate the national importance of his specific, 
proposed endeavor of providing services as an exercise trainer and group fitness instructor. 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. 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. 
at 890. 
The Petitioner presented an expert opinion letter from Dr. _______ Lecturer, 
Iwho stated that the Petitioner's initial proposed endeavor has national importance. 
However, the letter discusses the importance of personal trainers rather than focusing on the national 
importance of the Petitioner's specific, proposed endeavor. In addition, the letter does not explain 
how the Petitioner's particular services would have broader implications for our country. To evaluate 
whether the Petitioner's proposed endeavor satisfies the national importance requirement, we look to 
evidence documenting the "potential prospective impact" of his work. Dhanasar, 26 I&N Dec. at 889. 
Here, the Petitioner plans to address physical health, promote mental and emotional balance, design 
personalized exercise programs and group classes for special populations. However, the Petitioner 
did not demonstrate how his services largely influence the field and rises to the level of national 
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importance. While we acknowledge that it may be reasonable to conclude that exercise trainers and 
group fitness instructors can develop wellness programs that may prevent obesity and promote healthy 
nutrition and lifestyle habits, we agree with the Director in concluding that the record does not show 
that the Petitioner's proposed endeavor stands to sufficiently extend beyond his client base to impact 
the field of physical fitness or the U.S. physical fitness and health industry more broadly at a level 
commensurate with national importance. In Dhanasar, we determined 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. The record does not show through supporting documentation how his 
endeavor sufficiently extends beyond his clients, to impact the field or the U.S. economy more broadly 
at a level commensurate with national importance. Given the ubiquitous nature of the position, a 
single exercise trainer/group fitness instructor does not usually have national importance. 
The Petitioner did not show how his endeavor as an exercise trainer and group fitness instructor has 
significant potential to employ U.S. workers or otherwise offer substantial positive economic effects 
for our nation. Without evidence regarding any projected U.S. economic impact or job creation 
attributable to his particular future work, the record does not show any benefits to the U.S. regional or 
national economy resulting from his services would reach the level of "substantial positive economic 
effects" contemplated by Dhanasar. Id. at 890. 
Further, while the Petitioner has provided articles and industry reports discussing the importance of 
physical fitness, this documentation does not discuss the Petitioner's endeavor, nor does it establish 
how the benefits provided to his clients would result in broader national implications and 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). In addition, while we 
acknowledge the sole expert opinion, the issue here is whether the Petitioner has demonstrated the 
national importance of his proposed endeavor. USCIS may, in its discretion, use as advisory opinions 
statements from universities, professional organizations, or other sources submitted in evidence as 
expert testimony. Matter of Caron Int'l, 19 I&N Dec. 791, 795 (Comm'r. 1988). Moreover, expert 
opinions are relied upon in determining whether an individual is well positioned to advance the 
proposed endeavor and not in demonstrating the national importance of the proposed endeavor. As 
such, the Petitioner has not established that his proposed endeavor reaches a level of national 
importance to warrant a waiver of the job offer requirement. 5 
ORDER: The appeal is dismissed. 
5 As the Petitioner has not established the national importance of his proposed endeavor, we decline to reach and hereby 
reserve the Petitioner's arguments regarding his eligibility under the second and third prongs. Supra at INS v. Bagamasbad. 
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