dismissed EB-2 NIW Case: Physical Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 13, 2023 In Re: 28510796 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physical education instructor, seeks classification as a member of the professions 
holding an advanced degree. See 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 Nebraska Service Center denied the petition, concluding that the Petitioner 
qualifies as an advanced degree professional but that the record does not establish that a waiver of the 
job offer requirement is in the national interest. 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 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 for the classification, 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 I&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 qualifies as a member of the professions holding an advanced 
degree. The Director further found that the Petitioner established the substantial merit of the proposed 
endeavor and that he is well-positioned to advance it. However, the Director concluded that the 
Petitioner did not establish the endeavor's national importance or that, on balance, waiving the job 
offer requirement would benefit the United States. On appeal, the Petitioner submits a brief and a 
copy of evidence previously submitted and contends that he has established eligibility for a national 
interest waiver. 
A. Qualification for the EB-2 Classification 
Although the Director concluded that the Petitioner established his eligibility for the EB-2 
classification, upon de novo review we conclude that the record is not sufficiently clear to establish 
the Petitioner's EB-2 eligibility. 
The Petitioner claims to qualify for the EB-2 classification as an advanced degree professional based 
upon obtaining the foreign equivalent of a bachelor's degree followed by at least five years of 
progressive experience in the specialty. See 8 C.F.R. § 204.5(k)(2) (a member of the professions who 
possesses a bachelor's degree or the foreign equivalent degree followed by at least five years of 
progressive experience in the specialty will qualify as an advanced degree professional). The record 
shows that the Petitioner obtained a teaching degree (licenciatura) in physical education in 1998 and 
later the equivalent of one year of graduate-level study in human performance, both in Brazil. The 
record also shows that the Petitioner has more than 10 years of experience as a fitness instructor and 
trainer following his degree. 
To establish that the Petitioner's teaching degree is the equivalent of a U.S. bachelor's degree, the 
Petitioner submitted a copy of his diploma and transcripts and a credential evaluation. The credential 
evaluation states that the degree is equivalent to a U.S. bachelor's degree in physical education, 
concluding that the program is "substantially similar" to the required coursework for a bachelor's 
degree in the United States and that the Petitioner "completed at least four years" of coursework. 
However, this conclusion does not appear to be supported by the record; the transcripts submitted by 
the Petitioner do not show that he completed four years of coursework. Although the Petitioner began 
his program in 1994 and graduated in 1998, the transcripts appear to show that he completed only half 
of a school year in 1994 and took only one class in 1998, thereby completing only three and a half 
1 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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years of coursework. While the Petitioner's courseload during this time could have been accelerated 
and thus equivalent to a four-year program, this is not established by the transcripts or the credential 
evaluation. The credential evaluation does not discuss the credit hour requirement for this degree 
program and whether the degree typically represents at least four years of coursework that the 
Petitioner completed at an accelerated rate. Moreover, according to the American Association of 
Collegiate Registrars and Admissions Officers (AACRAO) Electronic Database for Global Education 
(EDGE),2 teaching degrees in Brazil vary in length from two to four years, and only a four-year 
program represents attainment of a level of education comparable to a bachelor's degree in the United 
States. 3 
We may, in our discretion, use an evaluation of a person's foreign education as an advisory opinion. 
Matter of Sea, Inc., 19 I&N Dec. 817, 820 (Comm'r 1988). However, where an opinion is not in 
accord with other information or is in any way questionable, we may discount or give less weight to 
that evaluation. Id. Because the evaluation provides only the generalized conclusion that the degree 
is "substantially similar" to a U.S. bachelor's degree, does not address the credit hour requirement or 
typical length of the program, and misstates the length of time during which the Petitioner completed 
coursework, we conclude that the evaluation is not sufficiently reliable. The Petitioner would need to 
address this deficiency in any future proceedings where attainment of a bachelor's degree or the 
foreign equivalent degree is required to establish eligibility. See 8 C.F.R. § 204.5(k)(2). 
B. Eligibility for a National Interest Waiver 
We tum now to the Petitioner's request for a national interest waiver under the Matter of Dhanasar 
framework. The Petitioner's proposed endeavor is to work as a fitness and wellness coordinator, 
through which he will "champion societal wellness through fitness and wellness program design and 
coordination." The Petitioner states that he will provide fitness and weight reduction consultations for 
clients and will develop specialized training and nutrition programs tailored to his clients' needs. The 
Petitioner also states that he will consult with other trainers, instructors, and gym owners to broaden 
the impact of his work. The Petitioner submitted with his personal statement a sample fitness program 
and nutritional plan. The Petitioner states that he has received interest from fitness studios in hiring 
him as a fitness and wellness coordinator, including a job offer from one studio and several other 
emails expressing interest. 
In concluding that the Petitioner did not establish the national importance of the proposed endeavor, 
the Director stated that while the endeavor may increase the mental and physical well-being of the 
Petitioner's clients, the record did not adequately establish that the endeavor would have an impact at 
a national level. The Director concluded that the Petitioner did not sufficiently demonstrate that the 
proposed endeavor offers original innovations that may contribute to the advancement of the industry, 
2 We consider EDGE to be a reliable source of information about foreign credential equivalencies. See Confluence Intern., 
Inc. v. Holder, Civil No. 08-2665 (DSD-JJG), 2009 WL 825793 (D. Minn. Mar. 27, 2009); Tisco Group, Inc. v. Napolitano, 
No. 09-cv-l 0072. 2010 WL 3464314 (E.D. Mich. Aug. 30, 2010); Sunshine Rehab Services, Inc. No. 09-13605, 2010 WL 
3325442 (E.D. Mich. Aug. 20, 2010). See also Viraj, LLC v. Holder, No. 2: 12-CV-00127-RWS, 2013 WL 1943431 (N.D. 
Ga. May 18, 2013). 
3 A two- or three-year program represents attainment of a level of education comparable to two or three years of university 
study in the United States. See https://www.aacrao.org/edge/country/brazil for information regarding the education system 
in Brazil. 
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and that without sufficient documentary evidence of its broader impact, the endeavor does not meet 
the national importance element of the first Dhanasar prong. 
On appeal, the Petitioner submits a brief in which he asserts that the Director erroneously applied a 
higher standard of proof and did not consider the totality of the evidence in the record. Specifically, 
the Petitioner asserts that the Director did not properly consider his personal statement, the sample 
exercise and nutrition program, the expert opinion letters, and the research articles submitted. 
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 conclude that the Petitioner's personal statement and the sample training and 
nutrition plan do not establish the national importance of the proposed endeavor. The Petitioner's 
personal statement describes his educational background, his work experience, and the certifications 
he has obtained in physical education. The Petitioner also describes his intent to work as a fitness and 
wellness coordinator and provides a list of the typical duties of this occupation. The statement also 
discusses initiatives, recommendations, and research from the federal government about the 
importance of physical fitness and the high cost of a sedentary lifestyle in terms of healthcare costs 
and premature mortality. These include an initiative led by the Centers for Disease Control and 
Prevention (CDC) called "Active People, Healthy Nation," and the U.S. Department of Health and 
Human Services physical activity guidelines. 
The Petitioner's sample fitness program is a 9- to 12-week exercise program that includes different 
recommended activities week by week and provides nutritional guidance. The Petitioner claims that 
his program "stands to substantially benefit overall societal welfare" and "will decrease U.S. obesity 
rates, and as a direct consequence ... substantially provide an economic benefit" to the United States. 
On appeal, the Petitioner additionally claims that the program is "cutting-edge," that he has "reached 
a large share of the population," and that he has "developed and implemented innovative approaches" 
which "set him apart" from others in the field. However, these claims are not supported by the 
evidence in the record. Neither the personal statement nor the sample program explains what is 
innovative about the Petitioner's approach, what sets this approach apart from other exercise programs, 
or how it will impact the field or the population beyond his own clients. The evidence also does not 
support or quantify the assertion that he has already reached a "large share of the population." The 
statement and program establish that the proposed endeavor stands to benefit the Petitioner's clients; 
however, they do not establish that the proposed endeavor stands to have broader implications for the 
fitness or wellness industry or for the economy. 
The Petitioner also asserts on appeal that the two opinion letters submitted in response to the request 
for evidence (RFE) were not properly considered by the Director. The opinion letters, one from a 
lecturer in the field of physical education and sports atc=]Universitv and the other from an adjunct 
professor of business, entrepreneurship, and sports management at the[ !College, both describe 
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the growth of the gym and fitness industries and discuss obesity in the United States, the associated 
negative health outcomes, and the benefits of regular physical activity. However, these claims relate 
to physical fitness in general and the importance of the fitness and wellness industries overall, rather 
than the Petitioner's specific endeavor. In determining national importance, the relevant question is 
not the importance of the industry, field, or profession in which an individual will work; instead, to 
assess national importance, we focus on the "specific endeavor that the [ noncitizen] proposes to 
undertake." Matter ofDhanasar, 26 I&N Dec. at 889. Although the lecturer fromc=]University 
claims that the Petitioner "will enable clients to reach their fitness goals" and the adjunct professor 
froml ICollege states that the Petitioner's "track record of success proves is he capable of 
delivering satisfactory results," these claims do not describe a broad impact on the field with 
implications that extend beyond the Petitioner's own clients. The opinion letters do not discuss how 
the specific, proposed endeavor may have national or even global implications that would rise to the 
level of national importance. Id. at 889-90. 
The Petitioner states that we must afford proper consideration to the letters because expert opinion 
letters are an important type of evidence in national interest waiver petitions and provide a reliable 
means of evaluating a petitioner's qualifications and the national importance of their endeavor. As a 
matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. Matter 
o_fCaron Int'!, Inc., 19 I&NDec. 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, the opinion letters are of little probative value as they 
primarily repeat the information stated by the Petitioner and conflate the importance and benefits of 
physical fitness in general with the national importance of the Petitioner's specific endeavor. 
Finally, the Petitioner asserts on appeal that the Director did not properly consider the probative 
research submitted. The record contains articles and research related to the benefits of physical 
activity, the rising levels of obesity in the United States, and government initiatives related to curbing 
obesity. However, this evidence again relates to the importance of physical fitness in general and the 
fitness industry overall. As noted above, in determining 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 "specific endeavor that the [noncitizen] proposes to undertake." Matter o_f Dhanasar, 
26 I&N Dec. at 889. None of the articles discuss the Petitioner's proposed endeavor, its potential 
impact, and how it may have national importance. See id. 
We note that, on appeal, the Petitioner asserts that he "submitted approximately four hundred ( 400) 
pages of documentation establishing a preponderance of the evidence (more likely than not), which 
was then summarily dismissed by the officer without providing an accurate analysis." While the 
Petitioner provided a significant volume of evidence, eligibility for the benefit sought is not 
determined by the quantity of evidence alone but also the quality. Matter ofChawathe, 25 I&N Dec. 
at 376 (citing Matter ofE-M-, 20 I&N Dec. 77, 80 (Comm'r 1989)). Accordingly, and for the reasons 
discussed above, we conclude that the Petitioner has not established the national importance of his 
proposed endeavor. 
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In summation, the Petitioner has not established that the proposed endeavor has national importance, 
as required by the first Dhanasar prong; therefore, he is not eligible for a national interest waiver. We 
reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong. 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 an 
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 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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