dismissed EB-2 NIW Case: Health And Fitness

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WLY 18, 2023 In Re: 27423048 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , an entrepreneur in the gym, health , and fitness clubs industry and in the martial arts 
studios industry, 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 is eligible for or otherwise merits a national interest waiver as a matter of 
discretion . 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. 
"Advanced degree" means any U.S. academic or professional degree or a foreign equivalent degree 
above that of baccalaureate . 8 C.F.R. § 204.5(k)(2) . A U .S. baccalaureate degree or a foreign 
equivalent degree followed by five years of progressive experience in the specialty shall be considered 
the equivalent of a master's degree. Id. 
"Profession" means one of the occupations listed in section 10l(a)(32) of the Act, 8 U.S .C. § 
l 10l(a)(32) , 1 as well as any occupation for which a U.S. baccalaureate degree or its foreign equivalent 
is the minimum requirement for entry into the occupation . 8 C.F.R. § 204.5(k)(2). 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
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 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 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 Petitioner proposed to work in the United States as an entrepreneur in the gym, health, and fitness 
clubs industry and in the martial arts studios industry. He holds a bachelor's degree in physical 
education froml !University and a teaching degree in physical education and a bachelor's degree 
in physical education from University~------------~ He worked as a gymnastic 
teacher and a boxing, Muay Thai, and kickboxing instructor at Personal Vip Sporting Events and 
Activities from April 2012 to May 2015 and as the managing partner ofl I 
from July 2015 and January 2018. The Director determined that the Petitioner is eligible for the EB-
2 classification as a member of the professions holding an advanced degree based on his combined 
education and experience, and we agree. 
The remaining issue on appeal is whether the Petitioner is eligible or otherwise merits a waiver of that 
classification's job offer requirement. We conclude that he is not. While we may not address each 
piece of evidence individually, we have reviewed and considered each one. 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the 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. Dhanasar, 26 I&N Dec. at 889. 
The Director determined that the Petitioner's proposed endeavor to work as an entrepreneurial physical 
educator and trainer in the field of health and fitness has substantial merit, and we agree. However, 
the Director found that the evidence submitted does not support the Petitioner's statements that the 
proposed endeavor will have potential prospective impact and determined that the Petitioner has not 
established that the proposed endeavor is of national importance. 
On appeal, the Petitioner maintains the proposed endeavor has national importance and that it would 
be beneficial to the United States to waive the requirements of a job offer and thus of the labor 
2 See also Poursina v. USC1S, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
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certification. The Petitioner does not submit new evidence to overcome the deficiencies noted in the 
Director's decision but submits duplicate copies of the previously submitted documents - business 
plan of his gym and martial arts studio, an expert opinion letter from a professor, and his resume. 
The Petitioner proposed to openl Ia gym and martial arts studio, which will provide cross 
training, boxing, kickboxing, Muay Thai, and Brazilian jiu-jitsu classes and a course in martial arts 
teaching techniques. The Petitioner also asserts that he intends to disseminate his knowledge by 
training and preparing future professionals. 
The Petitioner contends that his endeavor will impact a matter of national importance. He farther 
explains that the gym, health, and fitness clubs industry's revenue will grow 2% annualized to $35.3 
billion in 2027, that estimated profit in 2022 was $3.1 billion, and that there are currently 113,000 
companies and 960,000 employees in the United States. He also explains that the martial arts studios 
industry's revenue will grow 3.9% annualized to $9.9 billion in 2025, that estimated profit in 2020 
was $538.4 billion, and that in 2020, there were 39,308 companies and 61,275 employees in the United 
States. 
The Petitioner farther contends that based on the importance and critical role of small businesses in 
the U.S. economy as noted by the U.S. Chamber of Commerce's Small Business Council and 
supported by the U.S. Small Business Administration (SBA), his company as a small business will 
bring substantial benefits to the United States. The Petitioner also asserts that the budget of the U.S. 
government for fiscal year 2023 provides significant fonding to the SBA for various initiatives to 
support underserved entrepreneurs, small businesses, domestic manufacturing, veterans-owned small 
businesses and to combat climate change. We will discuss the Petitioner's assertions below. 
In support of his request for a national interest waiver, the Petitioner submitted an expert opinion letter 
from I Ian adjunct professor of business, entrepreneurship, and sports management at 
I I College. I I asserts that the Petitioner's proposed endeavor has national 
importance because his work in the field of health and fitness is in demand, because of the growth in 
the industry revenue and market size of the industry, because the Petitioner's endeavor has significant 
potential to benefit the United States by providing services and training to less experienced U.S. 
professionals and general public, and because regular physical activity has many positive health 
benefits, and lack of physical activity is associated with higher health care costs and utilization. 
Regarding the expert opinion letter from.________ _. USCIS may, in its discretion, use as 
advisory opinions statements from universities, professional organizations, or other sources submitted 
in evidence as expert testimony. See Matter o_f Caron International, 19 I&N Dec. 791, 795 (Comm'r 
1988). Nevertheless, USCIS is responsible for making the final determination regarding a petitioner's 
eligibility for the benefit sought. See id. We will also discuss the expert opinion letter below. 
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 "the specific endeavor that the 
foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. The revenue and 
profit projections and the current number of companies and employees in the industries provided by 
the industry reports and the expert opinion letter may support the importance of the gym, health, and 
fitness clubs industry, the martial arts studios industry, and the field of health and fitness. The studies 
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or reports provided by the U.S. Chamber of Commerce and the SBA may support the importance of 
small businesses in the U.S. economy. The expert opinion letter may support the importance of 
regular physical activity and its positive health benefits. However, these documents do not directly 
address the specific endeavor that the Petitioner proposed to undertake - establishing a gym and 
martial arts studio. 
The Petitioner contends that his proposed endeavor as an exercise trainer and a group fitness instructor 
au Ihas national or even global implications within a particular field. The Petitioner farther 
claims that his training of professionals who will teach martial arts will promote well-being of people 
through sports activities and that he will collaborate with the community to raise social awareness. 
The Petitioner asserts that his company has a monthly project of 450 boxing, kickboxing, Muay Thai, 
and Brazilianji-jitsu students and 30 martial arts teachers every three months and that all 480 students 
will disseminate his work method. 
In determining national importance, we indicated 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." See Dhanasar, 26 I&N Dec. at 
889. 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. 
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. While we 
acknowledge the Petitioner's claims, he has not provided sufficient evidence to substantiate them. For 
example, he has not provided sufficient documentary evidence that his proposed endeavor as an 
exercise trainer and a group fitness instructor at his gym and martial arts studio would impact the gym, 
health, and fitness clubs industry, the martial arts studios industry, or the field of health and fitness 
more broadly rather than benefiting his own gym and martial arts studio and its students, trainees, or 
clients. Without sufficient documentary evidence of their broader impact, the Petitioner's proposed 
employment does not meet the national importance element of the first prong of the Dhanasar 
framework. 
With regard to the Petitioner's assertion that he plans to provide a course in martial arts teaching 
techniques and train and prepare future professionals, the record does not show that this undertaking 
has broader implications for his field, as opposed to being limited to those who participate in his 
training sessions. While the Petitioner's plans to provide training services have merit, the record does 
not sufficiently demonstrate that his instructional activities offer benefits that extend beyond his 
trainees to impact the martial arts studios industry or the field of health and fitness more broadly. 
Likewise, 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. Dhanasar, 26 
I&N Dec. at 893. 
In support of his application for permanent residence in the United States and request for a national 
interest waiver, the Petitioner submitted recommendation letters from various individuals. For 
example, the Petitioner submitted a letter from~---------~ a general physician and 
pediatrician. I I states that some of his patients showed rapid improvements in their clinical 
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status of hypertension, diabetes, and depression after beginning physical exercises in a social project 
under the guidance of the Petitioner and that the Petitioner generated a great improvement in many 
people's lives. The Petitioner also submitted a letter from I I a boxing, kickboxing, 
and Muay Thai instructor and a gym owner. I lstates that the Petitioner has developed an 
innovative training method, which generated impressive physical results in his obese students within 
a few months; that these results increased demand for his training from new students; and that his 
innovative method and fast result have made other personal trainers look for him to learn his innovative 
methodology. The Petitioner also submitted a letter from.__ _______ ____. a nutritionist, which 
states that after seeing some of his personal training students, she noticed a rapid revolution in the 
weight loss and fat percentage reduction of these students and that she referred her patients with 
obesity, hypertension, and diabetes to do personalized training with the Petitioner. These letters show 
the success of the Petitioner's training method for some obese students and some patients who suffer 
from hypertension, diabetes, and depression. However, the record does not sufficient demonstrate that 
the proposed endeavor has national or global implications within the field of health and fitness or will 
broadly enhance societal welfare or physical and mental health of individuals residing in the United 
States rather than benefitting his students, trainees, or clients. 
The Petitioner contends that his gym and martial arts studio will generate both direct and indirect jobs, 
which will impact the U.S. economy. The Petitioner asserts that his gym and martial arts studio will 
create 10 direct jobs and up to 51.29 indirect jobs during the first five years of operations and that he 
will implement the franchise system to expand his business to the entire territory of the United States. 
The Petitioner also contends that the positive economic impacts of his business come not only from 
the generation of jobs and income but also from the generation of economic alternatives for various 
economic areas through the stimulation of bilateral trade between Brazil and the United States, which 
will generate large economic and social dividends. In addition, the Petitioner contends that the revenue 
projection over the first five years of operations is upward, which will provide a positive tax collection 
for the American market. 
Regarding the benefits to the local economy, the Petitioner contends that his company will positively 
affect and bring substantial economic benefits to Georgia, which is in a mild economic defcression. 
The Petitioner further contends that his company's headquarters will be located in I Georgia, 
an economically depressed area due to 22. 7% unemployment rate; there will be a great potential for 
absorbing local labor; and that his company will offer training courses to physical education and 
martial arts professions in the region at affordable prices. He claims that he expects to retain 2% of 
revenue to provide training workshops for new players and partners in the local community and that 
he will look for projects that the local community needs and desires. 
As for the economic value and job creation that the Petitioner asserts his gym and martial arts studio 
will offer, the business plan includes projections of $1,784,230 in salaries paid to the company's 
employees, $3,871,120.32 in total revenue, the creation of 10 direct jobs and 51.29 indirect jobs, and 
$190,175.45 in taxes paid by the company at the end of the five years of operations. However, the 
business plan does not provide sufficient details of the basis for these projections or adequately explain 
how this revenue and staffing targets will be realized. The preponderance of the evidence standard 
requires that the evidence demonstrate that the petitioner's claim is probably true, where the 
determination of truth is made based on the factual circumstances of each individual case. See Matter 
of Chawathe, 25 I&N Dec. at 376. In evaluating the evidence, truth is to be determined not by the 
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quantity of evidence alone but by its quality. See id. Thus, in adjudicating the petition pursuant to the 
preponderance of the evidence standard, the director must examine each piece of evidence for 
relevance, probative value, and credibility, both individually and within the context of the totality of 
the evidence, to determine whether the fact to be proven is probably true. See id. Here, lack of 
supporting details detracts from the credibility and probative value of the business plan. Moreover, 
even if all the projections in the business plan were realized, the record lacks sufficient evidence 
demonstrating that the Petitioner's business will have an impact on the gym, health, and fitness clubs 
industry, the martial arts studios industry, the field of health and fitness, or the U.S. economy at a level 
commensurate with national importance. 
Furthermore, the Petitioner has not offered sufficient evidence that her company will employ a 
significant population of workers in an economically depressed area or that the proposed endeavor 
would offer a particular U.S. region or its population a substantial economic benefit through 
employment levels or business activity. The Petitioner claims that his company's headquarters will 
be located inl IGeorgia, an economically depressed area due to a high unemployment rate. 
However, the Petitioner has not sufficiently demonstrated how the creation of 10 jobs by the company 
would constitute employment of a significant population of workers in the city or that the creation of 
these jobs would offer the city or its population a substantial economic benefit through employment 
levels. 
In addition, while the Petitioner claims that the positive economic impacts of his business also come 
from the generation of economic alternatives for various economic areas through the stimulation of 
bilateral trade between Brazil and the United States, which will generate large economic and social 
dividends, the Petitioner has not sufficiently demonstrated how his proposed endeavors to establish 
a gym and martial arts studio will stimulate bilateral trade between Brazil and the United States and 
how these activities will generate large economic and social dividends. 
Lastly, while the Petitioner claims that his company will generate $3,871,120.32 in total revenue at 
the end of the five years of operations, the Petitioner has not demonstrated that this revenue stands to 
substantially affect economic activity regionally or nationally. The Petitioner has not otherwise 
provided sufficient information and evidence to demonstrate the prospective impact of his proposed 
endeavor rises to the level of national importance. Accordingly, the record does not sufficiently 
demonstrate that the Petitioner's proposed endeavor is of national importance, and the Petitioner's 
proposed work does not meet the first prong of the Dhanasar framework. 
Because the documentation in the record does not establish the national importance of his proposed 
endeavor as required by the first prong of the Dhanasar precedent decision, the Petitioner has not 
demonstrated eligibility for a national interest waiver. Further analysis of his eligibility under the second 
and third prongs outlined in Dhanasar, therefore, would serve no meaningful purpose. We will reserve 
these issues for future consideration should the need arise. 3 
III. CONCLUSION 
3 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 l&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternate issues on appeal where an applicant is otherwise ineligible). 
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Although the Petitioner has shown that he is a member of the professions holding an advanced degree 
and that his proposed endeavor to work in the United States as an entrepreneur in the gym, health, and 
fitness clubs industry and in the martial arts studios industry has substantial merit, he has not shown 
by a preponderance of the evidence that his proposed endeavor has national importance. Accordingly, 
the Petitioner has not established by a preponderance of the evidence that he is eligible for or otherwise 
merits a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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