dismissed EB-2 NIW Case: Physical Fitness

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 21, 2024 In Re: 30185500 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the physical fitness 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. § l 153(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 a national interest waiver as a matter of discretion. 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 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. A U.S. bachelor's degree or foreign equivalent degree followed by five 
years of progressive experience in the specialty is the equivalent of a master's degree. 8 C.F.R. 
§ 204.5(k)(2). 
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 ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework 
for adjudicating national interest waiver pet1t10ns. 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: 
• 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 
A. EB-2 Classification 
The Director concluded that the Petitioner does not qualify for the EB-2 classification as an advanced 
degree individual. However, as the record does not establish by a preponderance of the evidence that 
the Petitioner is eligible for a national interest waiver as a matter of discretion, we will reserve the 
issue of the Petitioner's eligibility for the EB-2 classification. 2 
B. National Interest Waiver 
1. Substantial Merit 
The first prong, 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. Dhanasar at 889. 
The Petitioner's proposed endeavor is to open a physical fitness company that will provide physical 
cross training for circus artists and students, physical personal training, multiple martial arts training, 
and provide a bodybuilding monthly subscription. As the statement in the record further explains, the 
Petitioner will serve as the company's founder, athletic trainer, and performer. The record contains 
industry articles and reports on the federal government efforts in increasing physical activity and 
promoting youth sports, the importance of immigrants and entrepreneurialism, and small businesses. 
In addition, the Petitioner states his intention is that his work will,"[cc ]ontribute to access to innovation, 
new business practices, economic prosperity, and overall enhanced society welfare; it will also 
generate American jobs, increase national and international integration and productivity, and enhance 
revenue for the U.S. economy at large." We conclude that the Petitioner's proposed endeavor has 
substantial merit. 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCTS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
2 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 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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2. National Importance 
The Petitioner contends on appeal that the Director did not apply the proper standard of proof, instead 
imposing a stricter standard, and erroneously applying the law. He asserts the Director did not give 
"due regard" to the evidence submitted, specifically: the resume outlining his experience; the business 
plan describing his professional credentials, expertise, and accomplishments; evidence of his work in 
the field; letters of recommendation; and industry reports and articles showing the national importance 
of the proposed endeavor and the shortage of professionals in the field. Upon de novo review, we 
conclude that the Director properly analyzed the evidence to evaluate the Petitioner's eligibility by a 
preponderance of evidence and the Petitioner did not demonstrate that his proposed endeavor satisfies 
the national importance element ofDhanasar's first prong, as discussed below. Matter of Chawathe, 
25 I&N Dec. at 375-76. 
In determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. Dhanasar at 889. The Petitioner states that his proposed endeavor will contribute 
to the U.S. economy through job creation and economic impact. The business plan states that the 
Petitioner plans to employ 16 people in the first year of operation and will increase to 54 people by 
the fifth year of operation. These calculations were done using industry standards and the record does 
not show how his specific endeavor will create these jobs. Dhanasar states the proposed endeavor 
may show national importance by having a "significant potential to employ U.S. workers" or "other 
substantial positive economic effects, particularly in an economically depressed area." Id at 890. The 
record does not show how these jobs will be created by the Petitioner's proposed endeavor and the 
staffing levels themselves are not substantial enough to rise to the level of national importance. In 
addition, the record does not show how his proposed endeavor will have substantial positive economic 
effects that would rise to the level of being nationally important. 
The Petitioner states that he plans to expand his business to serve "[aa]11 the American territory and 
abroad." The business plan shows the endeavor will start with one location in Florida and then will 
add a second location in Florida, and an additional location in Nevada. Dhanasar states, " [ a ]n 
undertaking may have national importance for example, because it has national or even global 
implications within a particular field." 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. Id. at 893. Although the record shows the Petitioner intends to expand his business 
to multiple locations, the record does not establish the proposed endeavor will benefit more than the 
direct clients it will serve or that the Petitioner's business would impact the physical fitness field more 
broadly. 
The Petitioner claims his proposed endeavor can boost local economies, support small businesses, and 
create opportunities for local communities. In addition, he says his proposed endeavor holds social, 
artistic, and economic significance; that his endeavor contributes to the entertainment landscape and 
can contribute to the exchange of cultures, ideas, and experiences. While this is meritorious, the 
Petitioner has not provided corroborating evidence to support these claims of his business' substantial 
economic and social benefits to the United States. The Petitioner's claims, that his company will 
benefit the U.S. economy and enhance societal welfare, have not been established through independent 
and objective evidence. The Petitioner's statements are not sufficient to demonstrate his endeavor has 
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the potential to provide these benefits to the United States. The Petitioner must support his assertions 
with relevant, probative, and credible evidence. Chawathe, 25 I&N Dec. at 376. 
On appeal, the Petitioner contends the wide range of roles he has performed in the industry and the 
reports and articles in the record show his endeavor's national importance. Past experience is 
applicable to prong two analysis, on whether the Petitioner is well positioned to advance the endeavor 
but is not proof of national importance. In addition, the industry reports and articles on the importance 
of physical activity, immigrants and entrepreneurship, and the importance of small businesses are 
helpful for background information and in a substantial merit claim as discussed above, however, they 
also do not show national importance. It is the importance of the specific endeavor we must analyze 
and not the industry itself Lastly the appeal spends some time discussing the importance of business 
development professionals which does not connect to this petitioner's proposed endeavor as business 
development professionals are not included anywhere else in the record. 
Finally, the record contains an expert opinion letter that reiterates many of the same arguments the 
Petitioner makes that have been addressed above in regard to the proposed endeavor, the economic 
possibilities, its impact on society, and his past experience in the field of physical fitness. While we 
do not discuss each piece of evidence individually, we have reviewed and considered the record in its 
entirety. As the Petitioner's proposed work does not meet the first prong of the Dhanasar framework, 
the Petitioner has not demonstrated eligibility for a national interest waiver. Because the identified 
reasons for dismissal are dispositive of the Petitioner's appeal, we decline to reach and hereby reserve 
remaining arguments concerning eligibility under the Dhanasar framework. See Bagamasbad, 429 
U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
III. CONCLUSION 
The Petitioner has not met the requisite first prong of the Dhanasar analytical framework. We 
therefore conclude by a preponderance of the evidence 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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