dismissed EB-2 NIW Case: Physiology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 14, 2023 In Re: 29062626 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a physiologist, 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. § l 153(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, 8 U.S.C. § l l 53(b )(2)(B)(i). 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 
qualified for classification as a member of the professions holding an advanced degree but that the 
Petitioner had not established that a 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 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 a member of the professions holding an advanced 
degree 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. 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar , 26 l&N Dec. 884 (AAO 2016). Dhanasar states that , after a petitioner has established 
eligibility for EB-2 classification, USCIS may, as a matter of discretion, grant a national interest 
waiver if the petitioner demonstrates : (1) that the noncitizen's proposed endeavor has both substantial 
merit and national importance; (2) that the noncitizen is well positioned to advance the proposed 
endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements 
of a job offer and thus of a labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
noncitizen 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. In determining 
whether the proposed endeavor has national importance, we consider its potential prospective impact. 
The second prong shifts the focus from the proposed endeavor to the noncitizen. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the 
United States to waive the requirements of a job offer and thus of a labor certification. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the noncitizen's 
qualifications or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified 
U.S. workers are available, the United States would still benefit from the noncitizen's contributions; 
and whether the national interest in the noncitizen's contributions is sufficiently urgent to warrant 
forgoing the labor certification process. In each case, the factor(s) considered must, taken together, 
indicate that on balance, it would be beneficial to the United States to waive the requirements of a job 
offer and thus of a labor certification. 1 
II. ANALYSIS 
The Director found that the Petitioner qualifies as a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner has established that a waiver 
of the requirement of a job offer, and thus of a labor certification, would be in the national interest. 
For the reasons discussed below, the Petitioner has not established that a waiver of the requirement of 
a job offer is warranted. 
A. Whether the Proposed Endeavor has National Importance 
Initially, the Petitioner described the endeavor as a plan "to advance his career as an [ e ]xercise 
[p]hysiologist and by doing so, develop, implement and advance using his in-depth knowledge 
acquired through years of experience in the field." The Petitioner added that he would "make his 
services available to both the private and public sectors in the United States." Although the Petitioner 
elaborated on the merits of exercise training and he summarized his prior training and experience, he 
did not initially elaborate on what the specific endeavor he proposes to undertake would entail, other 
than generally working as a physiologist for one or more potential private or public employer(s) at 
some unspecified time for some unspecified duration. 
1 See Matter ofDhanasar, 26 l&N Dec. at 888-91, for elaboration on these three prongs. 
2 
In response to the Director's request for evidence (RFE), the Petitioner resubmitted a copy of his 
professional plan already in the record. The Petitioner also quoted the RFE, which, in relevant part, 
states that the Petitioner's "proposed endeavor to advance [his] career in [ e ]xercise [p]hyisiology has 
merit and holds national importance," to which the Petitioner added that he "amply satisfies the first 
prong of the Dhanasar framework," declining to address the first Dhanasar prong farther. 
In the denial notice, the Director provided directly conflicting statements regarding whether the 
Petitioner's proposed endeavor satisfies the first Dhanasar prong. The Director stated, in relevant 
part, that the Petitioner "did not explain what [his] specific undertaking is in the United States. Since 
it appears as though [the Petitioner does] not have a project/undertaking in the United States, the 
evidence suggests that [the Petitioner has] no proposed endeavor." Nevertheless, the Director also 
stated, "The Proposed Endeavor's Substantial Merit[;] This criterion has been met. The Proposed 
Endeavor's National Importance[;] This criterion has been met[.]" The Director did not clarify how 
the Petitioner may have satisfied the first Dhanasar prong's requirement that a "proposed endeavor 
has both substantial merit and national importance," Matter ofDhanasar, 26 I&N Dec. at 889, despite 
also observing that the Petitioner appears to have "no proposed 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." See Matter of Dhanasar, 26 I&N 
Dec. at 889. Dhanasar provided examples of endeavors that may have national importance, as 
required by the first prong, having "national or even global implications within a particular field, such 
as those resulting from certain improved manufacturing processes or medical advances" and endeavors 
that have broader implications, such as "significant potential to employ U.S. workers or has other 
substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90. 
The Petitioner's proposed endeavor of working as a physiologist for one or more potential private or 
public employer(s) at some unspecified time for some unspecified duration, "to advance his career," 
appears to benefit the Petitioner, his unspecified potential employer(s), and the clients whom the 
Petitioner may assist as a physiologist. However, the record does not establish how the proposed 
endeavor of advancing his physiology career may have "national or even global implications within a 
particular field, such as those resulting from certain improved manufacturing processes or medical 
advances." Id. at 889. Likewise, the record does not elaborate on any particular location in which the 
Petitioner anticipates working as a physiologist and how his endeavor of advancing his own career 
may have "significant potential to employ U.S. workers or ... other substantial positive economic 
effects, particularly in an economically depressed area." Id. at 889-90. We have reviewed the record 
in its entirety; however, it does not establish that the proposed endeavor has national importance. See 
id. 
Based on the reasons discussed above, we withdraw the Director's statement to the extent that it 
indicates the record establishes the proposed endeavor has national importance. Therefore, the record 
does not satisfy the first Dhanasar prong. See id. Because the record does not establish that the 
proposed endeavor has national importance, the remainder of the Dhanasar framework is moot. 
Nevertheless, we will address the denial basis before us on appeal. 
3 
B. Whether the Petitioner is Well Positioned to Advance the Proposed Endeavor 
Turning to the Director's stated basis for denial, the Director concluded that the record does not 
establish 
the Petitioner is well positioned to advance the proposed endeavor, as required by the second 
Dhanasar prong, specifically because it "lacks documents that farther define the proposed work and 
where it will be done. The [Petitioner] did not provide interest from relevant parties showing financial 
and other support that is committed to him which will enable his furtherance of the endeavor." 
On appeal, the Petitioner reasserts that he is well positioned to advance the proposed endeavor. He 
generally states, "Based on the evidence presented to the USCIS, it is clear that the Petitioner possesses 
an advanced degree." He also indicates that reference letters from two clients in the record address 
his record of success. He asserts that a copy of his business plan in the record "elucidates [his] progress 
in developing and establishing his own business in the United States, demonstrating a clear path 
towards achieving his entrepreneurial goals." He also asserts that copies of client invoices in the 
record are "concrete evidence of the level of interest and support from relevant individuals in the 
United States." The record does not establish that the Petitioner is well positioned to advance the 
proposed endeavor, for the reasons explained below. 
Dhanasar contemplates four, non-exhaustive, general factors that may demonstrate an individual is 
well positioned to advance a proposed endeavor: "the individual's education, skills, knowledge and 
record of success in related or similar efforts; a model or plan for future activities; any progress 
towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or 
other relevant entities or individuals." Matter ofDhanasar, 26 I&N Dec. at 890. 
Regarding the first factor, the record contains a copy of an academic evaluation letter from United 
States Credential Evaluations, dated December 2020, opining that the Petitioner's "Licentiate Degree 
in Physical Education, a Post-Baccalaureate Specialization in Exercise Physiology applied to Sports 
Training, a Bachelor's Degree in Physical Education, and 7 years of experience [ equates to] no less 
than the equivalent of a U.S. Master of Science in Athletic Training." However, the record does not 
support that conclusion of the academic evaluation letter. 
The record contains copies of documents written in a language other than English, accompanied by 
certified English translations that establish the I I, in Brazil, awarded 
the Petitioner a Bachelor's Degree in Physical Education in August 2016.2 Therefore, as of the 
December 2020 date of the academic evaluation, the Petitioner could have had, at most, approximately 
four years and four months of post-bachelor's experience in the specialty, which is insufficient to 
equate to a master's degree, as the academic evaluation opines. See 8 C.F.R. § 204.5(k)(2) (defining 
"[a] United States baccalaureate degree or a foreign equivalent degree followed by at least five years 
of progressive experience in the specialty" as the "equivalent of a master's degree"). Moreover, at the 
2 The other academic documents in the record, including the Licentiate Degree in Physical Education and Specialization 
in Exercise Physiology referenced by the academic evaluation, indicate that the Petitioner received those academic or 
professional degrees before he received the bachelor's degree in 2016. Specifically, the documentation relating to the Lato 
I 
Sensu Postgraduate Course at Specialization 
l
Level, in Exercise Physiology Applied to Sports Training, indicate that the 
in Brazil, awarded that deree to the Petitioner on August 10, 2016. However, the 
documents relating to the bachelor's degree indicate that the lin Brazil, awarded the 
bachelor's degree to the Petitioner on August 18, 2016. 
4 
time the Petitioner filed the Form I-140, Immigrant Petition for Alien Workers, in March 2021, he 
could have had, at most, approximately four years and seven months of post-bachelor's experience in 
the specialty, which is insufficient to equate to an advanced degree, as defined by Federal regulations. 3 
See id. 
Regardless of whether the Petitioner has the equivalent of an advanced degree, the academic 
documents provide minimal information regarding the education, skills, knowledge, and record of 
success the Petitioner may have had in related or similar efforts to determine how well positioned the 
Petitioner may be to advance the proposed endeavor. We acknowledge that the degree specialty of 
physical education is related to the proposed endeavor's field of physiology. However, the transcripts 
for the Petitioner's academic studies-as translated in English in the record- provide minimal 
substantive information. More specifically, although the transcripts in the record identify the title of 
the "subject," the numerical "grade" awarded to the Petitioner for the completion of particular courses, 
and the respective "course hours," the record does not supplement the subject titles with additional 
information regarding the content of the subjects' coursework and other information that may establish 
how well positioned the Petitioner may be to advance the proposed endeavor, beyond merely stating 
the course titles he completed. 
The record also contains copies of recommendation letters, both written in a language other than 
English and translated into English, with a certification from the translator. The letters generally attest 
that the Petitioner assisted the signatories in lowering their blood pressure and body weight, and in 
improving their general physical fitness. However, the original copies of the recommendation letters 
bear faded, pixelated images of signatures that could have been affixed to the documents by an 
unidentified individual using a word processor, rather than signed by the signatories' hands to indicate 
that they wrote the respective documents. Doubt cast on any aspect of a petitioner's proof may 
undermine the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter ofHo, 19 I&N Dec. 582,591 (BIA 1988). Because the letters bear faded, pixelated 
images of signatures that could have been affixed to the documents by individuals other than the 
ostensible signatories, they cast doubt on whether the respective signatories wrote the documents and, 
therefore, that the documents express the ostensible signatories' actual experiences and opinions. See 
id. Therefore, the reliability and sufficiency of the letters and, consequently, of other documents in 
the record, is undermined. See id. 
Even to the extent that the letters of support may be reliable, they do not provide sufficient information 
to determine how well positioned to advance the proposed endeavor the Petitioner may be. They 
generally attest to the Petitioner's assistance. However, the letters address the Petitioner in generalized 
3 Because we nevertheless find that the record does not establish that a waiver of the requirement of a job offer, and thus 
of a labor certification, would be in the national interest, we reserve our opinion regarding whether the Petitioner satisfies 
second-preference eligibility criteria. See section 203(b)(2) of the Act; see also INS v. Bagamasbad, 429 U.S. 24, 25 
( 1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results 
they reach"); Matter of L-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). We note, however, that the updated "Summary of Professional Qualifications" 
the Petitioner submitted in response to the Director's RFE indicates his most recent work experience was self-employed, 
between "February 2013 - January 2017" and "since August 2022." Because the Petitioner received his bachelor's degree 
in August 2016, he appears to have had approximately six months of post-bachelor's experience as of the March 2021 
petition filing date, which is substantially less than the five years of post-bachelor's experience required by regulation to 
establish the equivalent of an advanced degree. See 8 C.F.R. § 204.5(k)(2). 
5 
terms and conclusory statements that provide limited insight into how well positioned he may be to 
advance the proposed endeavor, which we note also is described in the record in generalized terms. 
Given that the record contains minimal information regarding the "specific endeavor that the 
[ noncitizen] proposes to undertake," the letters ofrecommendation' s generalized terms and conclusory 
statements, in tum, provide minimal information regarding how well positioned the Petitioner may be 
to advance the vague proposed endeavor. See Matter ofDhanasar, 26 I&N Dec. at 889-90. 
Regarding the second factor, we note that the record contains duplicate copies of a document titled 
"Professional Plan," dated February 2021. However, the plan provides minimal information regarding 
the Petitioner's model or plan for future activities. Instead, the document summarizes the Petitioner's 
prior training and experiences, and it provides generalized information regarding physiologists' duties. 
The plan states that the Petitioner "will create, develop and implement innovative solutions to attend 
U.S. companies' and client's [sic] needs." It also asserts that the Petitioner is "sure I will be invited 
to speak at lectures, seminars, congresses, symposiums, and other professional events." However, the 
document does not provide even basic details about a model or plan for how the Petitioner will 
generally "advance his career as an [ e ]xercise [p]hysiologist." Because the "Professional Plan"-and 
the remainder of the record-does not elaborate on how the Petitioner will accomplish his generalized 
endeavor, it does not establish a model or plan for future activities in such a way that may demonstrate 
how well positioned he may be to advance the proposed endeavor. See id. 
Regarding the third factor, as noted above, the record contains minimal information regarding what 
the proposed endeavor will entail, other than generally "advancing his career as an [ e ]xercise 
[p]hysiologist." Because the record does not contain sufficient details regarding what the specific 
endeavor the Petitioner proposes to undertake entails, the record does not establish how much progress 
the Petitioner may have made toward achieving the vaguely described endeavor in such a way that 
may indicate how well positioned the Petitioner may be to advance the proposed endeavor. See id. 
Finally, the Petitioner asserts that copies of client invoices in the record are "concrete evidence of the 
level of interest and support from relevant individuals in the United States." The record contains 14 
client invoices, each dated "December 2022." We note, however, that the invoices do not indicate the 
period during which the Petitioner invoiced the clients for his services. The record does not otherwise 
contain copies of client invoices referenced by the Petitioner on appeal. 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation of future eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter of Izummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
Because the client invoices in the record are dated "December 2022," after the March 2021 petition 
filing date, apparently for services rendered at some unspecified point in 2022, they appear to present 
a set of facts that did not exist at the time of filing. Therefore, they cannot-and do not-establish 
eligibility. See 8 C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 14 I&N Dec. at 49; Matter of 
Izummi, 22 I&N Dec. at 176. 
6 
Even if the invoices could establish eligibility, which they cannot and do not, they bear faded, pix elated 
images of signatures that could have been affixed to the documents by an unidentified individual using 
a word processor, rather than signed by the signatories' hands to indicate that they wrote the respective 
documents. Because the invoices bear faded, pixelated images of signatures that could have been 
affixed to the documents by individuals other than the ostensible signatories, they cast doubt on 
whether the respective signatories signed the invoices and, therefore, that the invoices express the 
ostensible signatories' acknowledgement of the respective sums owed for receipt of the Petitioner's 
services. See Matter of Ho, 19 I&N Dec. at 591. Therefore, the reliability and sufficiency of the 
invoices and, consequently, of other documents in the record, is undermined. See id. 
Moreover, even if the invoices could establish eligibility and were otherwise reliable and sufficient, 
they do not provide sufficient information to determine how well positioned to advance the proposed 
endeavor the Petitioner may be. The extent of each of the invoices' identical "item description" is as 
follows: "Exercise physiologist intervention which includes developing fitness and exercise programs 
that have the purpose of helping patients recovering from chronic diseases and improving 
cardiovascular function, body composition, and flexibility." The invoices do not elaborate on any 
particular service the Petitioner provided to any of the ostensible clients other than some unspecified 
type of physiological "intervention." Therefore, even if the invoices could establish eligibility and 
were otherwise reliable and sufficient, they provide minimal information regarding the services in 
which potential customers, users, investors, or other relevant entities or individuals may be interested, 
in order to determine whether the Petitioner is well positioned to advance the proposed endeavor. 
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. As 
a separate basis of ineligibility, because the record does not establish the Petitioner is well positioned 
to advance the proposed endeavor, he is not eligible for a national interest waiver. We reserve our 
opinion regarding whether the record satisfies the third Dhanasar prong. See INS v. Bagamasbad, 429 
U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. As noted above, we also reserve our 
opinion regarding whether the record establishes the Petitioner is eligible for second-preference 
classification. See id. 
III. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, in 
addition to the requisite second prong, we conclude that the Petitioner has not established eligibility 
for, or otherwise merits, a national interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
7