dismissed EB-2 NIW Case: Kinesiology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 05, 2024 In Re: 31283647 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur with a background in kinesiology, seeks employment-based second 
preference (EB-2) immigrant classification as either a member of the professions holding an advanced 
degree or 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. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner was eligible for a national interest waiver of the job offer requirement. 
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 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
On appeal, the Petitioner provides copies of additional AAO decisions. She argues that she has met 
the requirements of a national interest waiver. Specifically, she contends that she has demonstrated 
the national importance of her endeavor, which will provide kinesiology services "in the majority" for 
rural patients who lack healthcare access. She argues that she did demonstrate the broader 
implications, substantial positive economic effects, and significant potential to promote employment 
in the United States that her endeavor would provide. She also asserts that the Director erred by 
requiring her to submit a labor certification, as she is unable to file such a certification as a self­
employed entrepreneur. Finally, the Petitioner contests the Director's analysis of the record, 
contending that a stricter standard of proof was applied to her case than the appropriate preponderance 
of the evidence analysis. 
We adopt and affirm the Director's decision and analysis of the first prong of the Dhanasar 
framework. See Matter of Burbano, 20 l&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 
F.3d 230,234 (D.C. Cir. 1997) (noting that the practice of adopting and affirming the decision below 
has been "universally accepted by every other circuit that has squarely confronted the issue"); Chen v. 
INS, 87 F .3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding that appellate adjudicators may 
adopt and affirm the decision below as long as they give "individualized consideration" to the case). 
The Petitioner disagrees with the Director's evaluation of her evidence and asserts that she met the 
requirements ofDhanasar's first prong. We disagree; the Director's decision considered the available 
evidence and the Petitioner's arguments before determining that the national importance standard had 
not been met, and we see no error in the determination. The Petitioner has not provided details to 
support her assertion that the Director applied an incorrect standard of proof: and we see no evidence 
of this in the Director's decision. We have also reviewed the decision for an indication that the 
Director required evidence, such as a labor certification, not required by regulation. The decision does 
not lay out such a requirement. The Director appropriately referenced a labor certification under prong 
three, which calls for adjudicators to determine whether, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and attendant labor certification. 
Because 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, the Petitioner has not 
demonstrated eligibility for a national interest waiver. We reserve opinion on whether the Petitioner could 
satisfy the second and third prongs to qualify for a national interest waiver. See INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory findings" on issues 
that are unnecessary to the ultimate decision); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 
(BIA 2015) ( declining to reach alternative issues on appeal where the applicant did not otherwise meet 
their burden of proof). 
ORDER: The appeal is dismissed. 
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