dismissed EB-2 NIW Case: Massage Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 9, 2024 In Re: 30992694 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a massage therapist, seeks classification as an individual of exceptional ability. 
Immigration and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Act. U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, 
when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner is an individual of exceptional ability or that a waiver of the job offer 
requirement is in the national interest. 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 Christa 's, Inc. , 26 I&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 immigrant classification
, as either a member of the professions holding an 
advanced degree or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(B)(i) of the Act. 
Once a petitioner demonstrates eligibility as either an advanced degree professional or an individual 
of exceptional ability, the petitioner must then establish eligibility for a discretionary waiver of the job 
offer requirement "in the national interest." Section 203(b )(2)(B)(i) of the Act. While neither statute 
nor the pertinent regulations define the term "national interest," Matter of Dhanasar, 26 l&N Dec. 
884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions . 
Dhanasar states that USCIS may, as a matter of discretion, 1 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 Director found that the Petitioner did not establish that she is an individual of exceptional ability 
and as such did not establish that she qualifies for the EB-2 classification. 2 Regarding the Petitioner's 
request for a national interest waiver, the Director found that the Petitioner demonstrated the 
substantial merit of the proposed endeavor but not its national importance, that she is well-positioned 
to advance it, or that, on balance, waiving the job offer requirement would benefit the United States. 
The Petitioner's proposed endeavor is to operate a spa offering massage therapy services in Florida. 
On appeal, the Petitioner asserts that she qualifies as an individual of exceptional ability and that she 
has demonstrated her eligibility for a national interest waiver under each of the three Dhanasar prongs. 
Because, as we discuss below, we conclude that the Petitioner has not demonstrated the national 
importance of the proposed endeavor, we need not reach the question of whether she qualifies for the 
EB-2 classification or has established the second and third Dhanasar prongs and we reserve our 
opinion regarding those issues. 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). 
In determining that the Petitioner did not establish the national importance of the proposed endeavor, 
the Director stated that USCIS focuses on the specific endeavor that the individual proposes to 
undertake, rather than the importance of the field, industry, or occupation. The Director found that 
although massage therapy may improve patients' health and have benefits regarding productivity in 
the workplace, the Petitioner did not establish how her specific endeavor has broader implications 
within the field of massage therapy as claimed or how the claimed benefits will rise to the level of 
national importance. The Director also discussed Petitioner's claims regarding the economic benefits 
of the proposed endeavor, including those in the impact analysis report, and concluded that these 
claims were not sufficiently supported by independent evidence in the record. 
In appealing the Director's findings regarding the national importance of the endeavor, the Petitioner 
primarily repeats the same claims presented to the Director in response to the request for evidence 
(RFE). The Petitioner contends that massage therapy can help control health problems, reduce stress, 
reduce chronic pain, and overall improve well-being, thereby reducing healthcare spending, reducing 
the need for sick and disability pay, improving worker productivity, and positively impacting the 
economy. The Petitioner also asserts that the business will employ U.S. workers, earn revenue, and 
pay income taxes and therefore provide benefits to the U.S. economy. 
1 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and 
the Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is 
discretionary in nature). 
2 The Petitioner does not claim to qualify for the EB-2 classification as an advanced degree professional. 
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In determining whether a proposed endeavor has national importance, we consider its potential 
prospective impact. Matter ofDhanasar, 26 I&N Dec. at 889. An endeavor that has national or global 
implications within a particular field, such as those resulting from certain improved manufacturing 
processes or medical advances, may have national importance. Id. Additionally, an endeavor that is 
regionally focused may nevertheless have national importance, such as an endeavor that has significant 
potential to employ U.S. workers or has other substantial positive economic effects, particularly in an 
economically depressed area. Id. at 890. 
Upon de novo review, we agree with the Director that the record does not establish the proposed 
endeavor's national importance. We agree that, in determining whether a proposed endeavor has 
national importance, the relevant question is not the importance of the industry, field, or profession in 
which an individual will work; instead, we focus on the potential prospective impact of the "specific 
endeavor that the [noncitizen] proposes to undertake." See id. at 889. Additionally, we agree with the 
Director that the Petitioner's assertions regarding the claimed economic benefits of the proposed 
endeavor are not sufficiently supported by evidence. 
Although the Director noted these deficiencies in the decision, on appeal the Petitioner restates the 
claims that the economic benefits and the benefits of massage therapy as a field demonstrate the 
national importance of the endeavor. The Petitioner does not address or attempt to overcome the 
findings of the Director that these claims do not establish the importance of the specific, proposed 
endeavor. Moreover, the Petitioner does not identify any specific legal or factual errors in the 
Director's findings that the Petitioner did not establish national importance. 
The Petitioner contends that the proposed endeavor to work as a massage therapist will "reduce 
government spending," "contribute to the strengthening of the productive capacity and economy of 
the country," and "further grow the United States economy." However, these claims are not supported 
by the evidence in the record. Although the evidence demonstrates that the Petitioner is an experienced 
massage therapist and that she intends to establish a massage therapy business, the record does not 
demonstrate that the potential prospective impact of this endeavor includes improving the health and 
well-being of the U.S. population, or the U.S. economy, at a level commensurate with national 
importance. 
In Dhanasar we concluded that STEM teaching has substantial merit in relation to U.S. educational 
interests, but that the petitioner had not demonstrated that the activities of one individual STEM 
teacher would impact the education field more broadly. Id. at 893. The same is true here. The 
Petitioner has not established that the benefits of her proposed endeavor will extend beyond her own 
patients or employees to impact the massage therapy field or the U.S. economy more broadly. 
The Petitioner has not established that the proposed endeavor has national importance, as required by 
the first Dhanasar prong; therefore, she is not eligible for a national interest waiver. We acknowledge 
the Petitioner's arguments on appeal as to her qualification as an individual of exceptional ability and 
the second and third Dhanasar prongs but, having found that the evidence does not establish the 
Petitioner's eligibility as to national importance, we reserve our opinion regarding whether the record 
establishes the Petitioner's EB-2 eligibility or the remaining Dhanasar prongs. See INS v. 
Bagamasbad, 429 U.S. at 25 (stating that agencies are not required to make "purely advisory findings" 
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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 is otherwise 
ineligible). 
III. CONCLUSION 
Because the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established that she is eligible for or otherwise merits a national 
interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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