dismissed EB-2 NIW Case: Recreation And Fitness Studies

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 21, 2023 In Re: 28457572 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a recreation and fitness studies teacher, 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). 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. The Director concluded that although 
the Petitioner established eligibility for EB-2 classification as a member of the professions holding an 
advanced degree, the record did not demonstrate his eligibility for the requested national interest 
waiver. 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 apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christa 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova 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)(B)(i) of the Act. An 
advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above 
that of a bachelor's degree. 1 8 C.F.R. § 204.5(k)(2). A U.S. bachelor's degree or aforeign equivalent 
degree followed by five years of progressive experience in the specialty is the equivalent of a master's 
degree. Id. 
Once a petitioner demonstrates eligibility for the underlying classification, the petitioner must then 
establish eligibility for a discretionary waiver of the job offer requirement " in the national interest." 
1 Profession shall include, but not be limited to, architects, engineers, lawyers, physicians, surgeons, and teachers in 
elementary or secondary schools, colleges, academics, or seminaries. Section 101(a)(32) of the Act. 
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 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as 
matter of discretion2, 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 determined that the Petitioner qualifies for the underlying EB-2 classification as a 
member of the professions holding an advanced degree.3 We agree that the record establishes the 
Petitioner's eligibility for the EB-2 classification. 
However, the Director concluded the Petitioner did not establish that a waiver of the requirement of a 
job offer, and thus a labor certification, would be in the national interest. The Director found that 
while the Petitioner demonstrated the proposed endeavor has substantial merit, he did not establish 
that the proposed endeavor is of national importance, as required by the first Dhanasar prong. The 
Director further found that the Petitioner did not establish that he is well positioned to advance the 
proposed endeavor, and 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. Upon de novo review, we agree with the 
Director's determination that the Petitioner did not demonstrate that a waiver of the labor certification 
would be in the national interest.4 
The first prong of the Dhanasar analytical framework, substantial merit and national importance, 
focuses on the specific endeavor that a petitioner proposes to undertake. The endeavor's merit may 
be demonstrated in a range of areas, such as business, entrepreneurial ism, science, technology, culture, 
health, or education. In determining national importance, the relevant question is not the importance 
of the field, industry, or profession in which the individual will work; instead, we focus on the "the 
specific endeavor that the foreign national proposes to unde1iake." Matter of Dhanasar, 26 l&N Dec. 
at 889. 
The Petitioner initially submitted a professional plan and statement with his Form 1-140 indicating that 
he proposed to work as a post-secondary recreation and fitness studies teacher. The Petitioner stated, 
"I fully intend to continue my career in the United States as a post-secondary recreation and fitness 
studies teacher, specifically serving the education system." (emphasis omitted). His statement further 
states, "Upon my visa acceptance, I will prospect post-secondary [sic] teaching jobs throughout the 
United States. Additionally, I will take the necessary steps to ... market myself to national areas and 
2 See also Poursina v. USClS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 To demonstrate he is an advanced degree professional, the Petitioner submitted his academic certificate and transcripts 
from Universidade I I where he completed a program of physical education in 1997; an academic 
evaluation; and letters from his previous employers. The record demonstrates that he holds the foreign equivalent of a 
U.S. bachelor's degree in physical education and at least five years of progressive experience in his specialty. See 8 C.F.R. 
§ 204.5(k)(3). 
4 While we may not discuss every document submitted, we have reviewed and considered each one. 
2 
regions in which teachers with my credentials are in high demand." The Petitioner also indicated 
receiving a job offer, "Recently, I have even received a job offer in teaching physical education as 
Footvolley Coach atl Ivery first soccer school in Florida." The 
Petitioner asserted that his proposed endeavor is of substantial merit and national importance stressing 
the "rising shortage of teachers at al I levels, especially post-secondary teachers .... " 
The Petitioner's initial description of the proposed endeavor does not provide details beyond his 
intention to work as a post-secondary recreation and fitness studies teacher for a U.S. institution of 
higher learning. The Petitioner did not include any specific plans or evidence about being an 
entrepreneur and starting a sports academy business with his initial submission of the Form 1-140. 
The Director issued a request for evidence notice seeking further information and evidence that the 
Petitioner meets each of the three prongs of the Dhanasar framework. The request for evidence 
explained that the while the teaching profession is one of substantial merit, it did not have national 
importance stating, "In the same way that Dhanasar finds that a classroom teacher's proposed 
endeavor is not nationally important because it will not impact the field more broadly, ... the 
[P]etitioner has not shown [his] proposed endeavor, which is also that of a teacher, stands to 
sufficiently extend beyond his students to impact the industry or field more broadly." (emphasis 
omitted). 
In response, the Petitioner submitted further evidence about his proposed endeavor indicating he 
intends to use "his knowledge and experience as a [recreation and fitness studies teacher] to Jrovide I 
fitness programs, plans and routines for clients" by establishing a sports academy business, 
I I in Florida. The Petitioner stated, "The company will specialize in providing Soccer, 
Volleyball, and Footvolley lessons, and Sports Consultancy, in general, among other sport-related 
services to customers in the U.S. market." The Director found that the Petitioner's proposed endeavor 
of establishing a sports academy business constituted a substantial change from his initially indicated 
proposed endeavor of being a post-secondary recreation and fitness studies teacher for an educational 
institution. The Director acknowledged the Petitioner's proposal to establish a sports academy 
business but did not address its related evidence in any substantive way stating, "A petitioner may not 
make material changes to a petition that has already been filed in an effort to make an apparently 
deficient petition conform to [USCIS] requirements." See Matter of lzummi, 22 l&N Dec. 169, 176 
(Assoc. Comm'r 1998). The Director found that the Petitioner's initially proposed endeavor of being 
a post-secondary recreation and fitness studies teacher for an educational institution was not of 
national importance. 
On appeal, the Petitioner does not address the Director's finding that the updated proposed endeavor 
of establishing a sports academy business constituted a material change to the petition and was not 
considered in the Director's decision. Instead, the Petitioner argues that his working in the physical 
education and health sector by establishing a sports academy business meets Dhanasar's three prongs, 
including it having national importance under the first prong. 
The record initially depicted the Petitioner's endeavor as a post-secondary recreation and fitness 
studies teacher to a single employer, an educational institution. The Petitioner's reply to the request 
for evidence and appeal did not enhance or clarify the Petitioner's initially proposed endeavor as a 
post-secondary recreation and fitness studies teacher. Instead of clarifying the Petitioner's proposed 
3 
endeavor, the evidence presents a new set of facts regarding the proposed endeavor, which is material 
to eligibility for a national interest waiver. 
USCIS regulations affirmatively require a petitioner to establish eligibility for the benefit sought at 
the time the petition is filed. 8 C.F.R. § 103.2(b)(1). The Petitioner's plans to be an entrepreneur by 
establishing a sports academy business were presented after the filing date; as such, the revised 
endeavor cannot retroactively establish eligibility. If significant material changes are made to the 
initial request for approval, a petitioner must file a new petition rather than seek approval of a petition 
that is not supported by the facts in the record. The Petitioner has not provided a definitive and 
consistent description of his proposed endeavor that would allow for a meaningful analysis of whether 
that endeavor is one of substantial merit and national importance. For these reasons, the petition may 
not be approved. 
The Petitioner generally contends on appeal that the Director "did not apply the proper standard of 
proof ..., instead imposing a stricter standard, and erroneously applied the law .... " ( emphasis 
omitted). The Petitioner further argues that the Director "did not give due regard" to the evidence 
submitted, specifically the Petitioner's business plan, evidence of work in his field, evidence that 
Petitioner is working to advance his proposed endeavor, letters of recommendation, and industry 
reports and articles. 
The record includes the Petitioner's business plan to establish the sports academy business. Even if 
the proposed sports academy business contemplated in the business plan could establish eligibility, 
which it cannot, the Petitioner has not met his burden. Upon de nova review, the record does not show 
by apreponderance of the evidence that the Petitioner's proposed endeavor described in the business 
plan satisfies the national importance element of Dhanasar's first prong, as discussed below. 
The Petitioner argues that the Petitioner "intends to work in the physical education and health sector, 
by using his expertise and knowledge from over twenty ...years of progressive experience" to "bring 
substantial benefits to the country's healthcare landscape, population health, and national economy. 
It will also train a new generation of how to live a healthier lifestyle to reduce the burden that the 
health crisis has created on the [United States]." The Petitioner argues that in his previous professional 
experiences, "he has successfully developed individuals to new health and fitness heights. This has 
allowed him to influence his country's healthcare and population's health activity positively, as he is 
beginning to do in the [United States]." To demonstrate the national importance of his proposed 
endeavor, the Petitioner describes in detail his professional experience, credentials, and achievements 
in the "physical education and health sector." He argues "his professional record mirrors how his line 
of work offers broad implications - both social and economic - to the United States, specifically 
through his functions within the education field." 
However, the Petitioner's reliance on his professional experience, credentials, and achievements to 
establish the national importance of his proposed endeavor is misplaced. His professional experience, 
credentials, and achievements relate to the second prong of the Dhanasar framework, which "shifts 
the focus from the proposed endeavor to the foreign national." Matter of Dhanasar, 26 l&N Dec. at 
890. The issue here is whether the specific endeavor that the Petitioner proposes to undertake has 
national importance under Dhanasar ·s first prong. To evaluate whether the Petitioner's proposed 
4 
endeavor satisfies the national importance requirement, we look to evidence documenting the 
"potential prospective impact" of his work. See id. at 889. 
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 the field more broadly. Id. at 893. The record 
does not demonstrate that the Petitioner's proposed endeavor of establishing a sports academy 
specializing in soccer, volleyball, and footvolley lessons, and sports consultancy, will substantially 
benefit the field of physical education, as contemplated by Dhanasar: "[a]n undertaking may have 
national importance for example, because it has national or even global implications within a particular 
field, such as those resulting from certain improved manufacturing processes or medical advances." 
Id. The evidence does not suggest that the Petitioner's proposed sports academy business would 
impact the physical fitness, recreation, or fitness studies fields more broadly. 
The Petitioner further argues the successful management of his proposed business will benefit the 
United States economically by creating jobs, offering "competitive services, helping develop the 
country, and producing income for the U.S. economy." The Petitioner argues that the business will 
impact the education services industry with a revenue of $460,000, net profit within its first five years. 
He further argues that establishing the business in Florida in a "SBA HUBZone area ... will help to 
fuel small business growth in historically underutilized business zones," generate jobs for U.S. 
workers in an underutilized community, improve wages for U.S. workers, and help the local 
co
1
munityj The business plan briefly explains that its office will be in an underutilized business zone 
in Florida. The business plan mainly focuses on the Petitioner's professional experience, 
credentials, and achievements; a market analysis of sports clinic industry, including opportunities and 
competition; intended marketing of the business; and projected financial plan. 
However, the record does not sufficiently document the potential prospective impact, including the 
asserted economic benefits to Florida and the United States. The Petitioner has not provided 
corroborating evidence to support his claims that his business' activities stand to provide substantial 
economic benefits to the underutilized area of Florida or the United States. The Petitioner's claims 
that his proposed sports academy business will benefit the Florida or U.S. economy has not been 
established through independent and objective evidence. The Petitioner's statements are not sufficient 
to demonstrate his endeavor has the potential to provide economic benefits to the United States. The 
Petitioner must support his assertions with relevant, probative, and credible evidence. See Matter of 
Chawathe, 25 l&N Dec. at 376. Even if we were to assume everything the Petitioner claims will 
happen, the record lacks evidence showing that $460,000, net profit within its first five years rises to 
the level of national importance. The record lacks sufficient documentary evidence that his proposed 
job duties as the owner and physical education trainer of his business would impact the physical 
fitness, recreation, or fitness studies fields more broadly, rather than benefiting his business and his 
proposed clients. The Petitioner has not demonstrated by a preponderance of the evidence that his 
proposed endeavor of establishing a sports academy business is of national importance. 
The Petitioner further claims on appeal that the national importance of his proposed endeavor is 
evidenced in industry reports and articles. He argues that the reports and articles demonstrate the 
importance of physical education to improve the national health by decreasing "healthcare expenses, 
opioid abuse, and time spent away from school, work, and daily life, [sic] therefore improving the 
quality ofliving for the nation." He further argues that his endeavor helps an industry having anational 
5 
shortage of knowledgeable and experienced professionals. We recognize the importance of fitness 
and physical education and related careers; however, merely working in the fitness and physical 
education fields or starting a sports academy business is insufficient to establish the national 
importance of the proposed endeavor. Instead, of focusing on the importance of an industry or the 
need for workers in a specific industry, we focus on the "the specific endeavor that the foreign national 
proposes to undertake." See Matter of Dhanasar, 26 l&N Dec. at 889. 
In Dhanasar, we noted that "we look for broader implications" of the 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." Id. 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. The industry reports and articles submitted do not discuss any projected U.S. economic impact, 
job creation, or health benefits specifically attributable to the Petitioner's proposed endeavor. 
We note that the record includes an expert opinion from I Iadjunct professor of 
business, entrepreneurship, and sports management atl !College. The opinion includes an 
analysis of the national importance of the Petitioner being aphysical education specialist stating, "[The 
Petitioner] would work in the United States in an area of substantial merit and national importance." 
(emphasis omitted). The opinion explains that the United States has an issue with obesity and believes 
physical education specialists would be important to help address the obesity issue. However, the 
opinion's focus on the need for physical fitness specialists to help an issue such as obesity and 
individual health does not demonstrate that the Petitioner's specific endeavor may have a prospective 
impact in his field. The opinion does not focus on the Petitioner's specific endeavor and it having a 
potential prospective impact on the U.S. economy or healthcare, or in the field of his proposed 
endeavor. Simply stating that his work would be in an area of importance is not sufficient to meet the 
"national importance" requirement under the Dhanasar framework. 
If the proposed endeavor of establishing a sports academy business could establish eligibility, which 
it cannot, the Petitioner does not demonstrate that this proposed endeavor extends beyond his business 
and his future clients to impact the field or any other industries or the U.S. economy more broadly at 
a level commensurate with national importance. Beyond general assertions, he has not demonstrated 
that the work he proposes to undertake as the owner and physical fitness specialist of his proposed 
sports academy business offers original innovations that contribute to advancements in his industry or 
otherwise has broader implications for his field. The economic and healthcare benefits that the 
Petitioner claims depend on numerous factors, and the Petitioner did not offer a sufficiently direct 
evidentiary tie between his proposed business' sports academy work and the claimed economic and 
healthcare results. 
Because the documentation in the record does not sufficiently establish the national importance of the 
Petitioner's proposed endeavor as required by the first prong of the Dhanasar precedent decision, he 
has not demonstrated eligibility for a national interest waiver. Since the identified basis for denial is 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the Petitioner's appellate 
arguments regarding his eligibility under the second and third prongs. See INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of 
6 
which is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 
(BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
111. CONCLUSION 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we find 
that the Petitioner has not established eligibility for a national interest waiver as a matter of discretion. 
The appeal will be dismissed for the above stated reasons. 
ORDER: The appeal is dismissed. 
7