dismissed EB-2 NIW Case: Physical Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 19, 2023 In Re: 28403716 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an adapted physical education instructor and entrepreneur, 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 Nebraska Service Center denied the petition. The Director determined that the 
record established the Petitioner's eligibility for the underlying EB-2 classification but did not 
establish that a discretionary waiver of the required job offer, and thus of the labor certification, would 
be 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo '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 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Section 203(b )(2) of the Act. 
If a petitioner demonstrates eligibility for the underlying EB-2 classification, 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 1, grant a national interest waiver if 
the petitioner demonstrates that: 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
• 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 determined that the Petitioner qualifies for EB-2 classification as a member of the 
professions holding an advanced degree and the record supports this conclusion. 2 Therefore, the sole 
issue before us is whether the record establishes that a waiver of the job offer requirement, and thus 
of a labor certification, would be in the national interest. 
Prior to his admission to the United States in 2018, the Petitioner worked as a multi-sport trainer, 
instructor, and coach for students of various age ranges and abilities, from young children to 
professional athletes. He submitted a business plan indicatin~ his intent to establish and serve as 
president/lead instructor for a swim school that will be located in IFlorida. The Petitioner 
states that the proposed endeavor will offer group swim lessons for children and adolescents, private 
lessons and personal training tailored to competitive swimmers, private swim lessons for persons with 
disabilities, swim instructor training courses for adolescents who wish to teach persons with 
disabilities, and other classes including water aerobics, physical conditioning, general health and well­
being, and academic tutoring. 
Although the Director found substantial merit in the proposed endeavor, they concluded the Petitioner 
did not establish that his proposed endeavor has national importance, that he is well-positioned to 
advance the proposed endeavor, and that, on balance, waiving the job offer requirement would be 
beneficial to the United States. 
On appeal, the Petitioner asserts that the Director overlooked credible and probative evidence, 
misapplied the legal standards for adjudication of a national interest waiver petition, and inflated the 
standard of review above the preponderance of the evidence standard. For the reasons provided below, 
we conclude that the Petitioner has not established the national importance of his proposed endeavor 
and therefore is not eligible for a national interest waiver as a matter of discretion. While we do not 
discuss every 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. 
The record includes media and government reports discussing the exercise habits of Americans, the 
fact that most Americans of all ages do not meet the minimum physical activity recommendations 
published by the Department of Health and Human Services, and the health-related consequences of 
inadequate physical activity, including obesity, Type 2 diabetes, and other preventable diseases. The 
2 The Petitioner provided an official academic record documenting his completion of a bachelor's degree in physical 
education from a Brazilian university, an educational evaluation indicating that this foreign degree is equivalent to a U.S. 
bachelor's degree in the same field, and letters from prior employers documenting that he has more than five years of post­
baccalaureate work experience in this specialty. See 8 C.F.R. § 204.5(k)(2) (defining "advanced degree"). 
2 
submitted evidence also addresses the importance of physical exercise to the physical, emotional and 
mental well-being of persons with disabilities, barriers that impact their access to physical activity, 
and efforts to ensure that this population, and particularly children with disabilities, are provided with 
equal opportunities for participation in sports and exercise. Based on this evidence, the record supports 
the Director's determination that the Petitioner's proposed endeavor to provide swimming instruction, 
physical training, and related services to children, adolescents and persons with disabilities has 
substantial merit. 
However, 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" and its potential prospective impact. 
Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we emphasized that "we look for broader implications" 
of the specific 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." 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. 
In the business plan for his proposed endeavor, the Petitioner stated that his swim school will increase 
swim and sports opportunities for people with disabilities, create both direct and indirect jobs, fill a 
demand for well-trained sports instructors, and promote "health, wellness and fitness" in the 
community. We have reviewed the staffing and revenue projections in the submitted business plan. 
The Petitioner projects that his proposed company, within five years, will employ seven employees, 
cumulatively pay wages of over $1.1 million, generate gross revenues of over $3.3 million, and 
contribute over $300,000 in tax revenue to the economy. 
Even if these employment and revenue projections were adequately supported by details showing their 
basis or a specific explanation of how they will be realized, the business plan would not demonstrate 
the proposed endeavor's significant potential to either employ U.S. workers or to substantially impact 
the regional or national economy. Specifically, the record does not support that the direct creation of 
seven jobs in this sector or the expected tax revenue generated by the company will have a substantial 
economic benefit commensurate with the national importance element of the first prong of the 
Dhanasar framework. The Petitioner does not claim he will open his swim school in an economically 
depressed area, that it would employ a significant population of workers in such an area, or that the 
endeavor would offer a region or its population a substantial economic benefit through employment 
levels, business activity, or related tax revenue. 
We acknowledge the Petitioner's arguments that physical education and exercise are important for the 
nation's quality oflife and productivity, and that a healthier population would have a positive indirect 
impact on the U.S. economy, in part due to decreased healthcare costs. In this regard, the Petitioner 
claims that his work "actively creates financial bridges and prompts economic developments that 
enhance and improve the functionality and monetary output of the nation's economy, as well as the 
well-being of the individual." However, the Petitioner does not offer an evidentiary basis to conclude 
that his operation of a swim school with one location will have such far-reaching results. The record 
does not support a determination that any indirect benefits to the U.S. regional or national economy 
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resulting from the Petitioner's proposed endeavor would reach the level of "substantial positive 
economic effects" contemplated by Dhanasar. See id. at 890. 
On appeal, the Petitioner contends that the Director placed undue focus on whether his proposed 
endeavor would have "substantial positive economic effects," noting that job creation and other direct 
economic impacts, as well as the geographical breadth of the proposed activities, are not the only 
factors that should be considered in weighing the national importance of the proposed endeavor. We 
agree and have also considered whether the Petitioner's proposed endeavor will have broader 
implications in his field or industry. 
We determined in Dhanasar 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. 26 I&N Dec. at 893. Here, 
the Petitioner, through his company, intends to offer swim instruction as well as swim instructor 
training courses for adolescents who wish to teach swimming to persons with disabilities. The 
Petitioner estimates that he will offer up to three instructor training courses per week by year five, 
with five participants in each course. Like the petitioner in Dhanasar, the Petitioner has not 
established how his proposed teaching or training activities would reach beyond the limited number 
of participants in these courses. While there are clearly benefits to teaching children of all ability levels 
to swim, he did not explain how the courses he intends to provide would have broader implications in 
the field. The record does not establish, for example, that the Petitioner plans to disseminate his 
training methods or techniques, such that his specific endeavor would provide a platform for the 
introduction of new training processes or methodologies for working with persons with disabilities, or 
that he would otherwise be positioned to influence the broader field or industry in this regard. 
Similarly, while the classes and services offered by the Petitioner's swim school will likely enhance 
the physical and mental well-being of persons who enroll in his classes, the record does not support a 
finding that the proposed endeavor has the potential to broadly enhance societal welfare at a level 
commensurate with national importance. 
On appeal, the Petitioner asserts that the services offered by his proposed swim school, and particularly 
those services aimed at persons with disabilities, will have an impact on matters that are the subject of 
national initiatives by the U.S. government. He submits a Centers for Disease Control and Prevention 
(CDC) publication titled Inclusion in School Physical Education and Physical Activity that is "aimed 
at state education and health leaders." 
USCIS will consider evidence demonstrating how a specific proposed endeavor impacts a matter that 
a government entity has described as having national importance or a matter that is the subject of 
national initiatives. Again, in determining national importance, the relevant question is not the 
importance of the industry 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 guidance provided in the newly submitted CDC publication suggests, for instance, that state 
officials may promote inclusion by partnering or collaborating with state disability program staff: 
Special Olympics State affiliates, local university departments working with adapted physical 
education, and adapted sports programs or clubs. The Petitioner's proposed swim school will offer 
adapted swim instruction to persons with disabilities among many other services, but he has not 
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indicated any intent to partner or collaborate with state education and health leaders in their inclusion 
efforts as part of this CDC initiative. Pursuing employment or operating a business in an area that is 
adjacent to the subject of national initiatives is not sufficient, in and of itself: to establish the national 
importance of a specific endeavor. Here, the Petitioner has not demonstrated the potential prospective 
impact of his specific endeavor to a matter that is the subject of national initiatives. 
Finally, to illustrate the potential impact of his proposed endeavor, the Petitioner pointed to his past 
employment experience and qualifications in the field of physical education. We reviewed his 
statements and the letters of recommendation from his employers, professional contacts, and students 
who have benefited from his coaching and instruction. The authors of the letters praise the Petitioner's 
abilities and subject-matter expertise as a physical education professional, and the attributes that make 
him an asset to his employers and to the students and athletes he has trained. While the authors express 
their high opinion of the Petitioner and his work, they do not discuss his specific proposed endeavor 
or explain why it has national importance. As such, the letters are not probative of the Petitioner's 
eligibility under the first prong of Dhanasar. Furthermore, we note that the Petitioner's knowledge, 
skills, education, and experience are considerations under Dhanasar' s second prong, which "shifts the 
focus from the proposed endeavor to the foreign national." 26 I&N Dec at 890. The issue under the 
first prong is whether the Petitioner has demonstrated the national importance of his proposed work. 
While the Petitioner's evidence establishes how his endeavor stands to positively impact his students 
and their families, the evidence does not persuasively establish how his endeavor will have a broader 
impact consistent with national importance. Accordingly, the Petitioner has not established that his 
proposed endeavor meets the first prong of the Dhanasar framework. 
Because the identified reasons for dismissal are dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve remaining arguments concerning his eligibility under the second and third 
prongs of the Dhanasar framework. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that 
"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 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 
As the Petitioner has not met the 
requisite first prong of the Dhanasar analytical framework, we conclude 
that he has not established he is eligible for or otherwise merits a national interest waiver as a matter 
of discretion. The appeal will be dismissed for the above stated reason. 
ORDER: The appeal is dismissed. 
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