dismissed EB-2 NIW Case: Tennis Coaching

U.S. Citizenship 
and Immigration 
Services 
In Re : 22064602 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: SEP. 7, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a tennis coach, seeks second preference 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 EB-2 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, 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. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. 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. 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. 
Section 203 (b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability . -
(A) In general. - Visas shall be made available . .. to qualified immigrants who 
are members of the professions holding advanced degrees or their 
equivalent or who because of their exceptional ability in the sciences, arts, 
or business, will substantially benefit prospectively the national economy, 
cultural or educational interests, or welfare of the United States, and whose 
services in the sciences, arts, professions, or business are sought by an 
employer in the United States. 
(B) Waiver of job offer-
(i) National interest waiver. ... the Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the 
sciences, arts, professions, or business be sought by an employer in the 
United States. 
While neither the statute nor the pertinent regulations define the te1m "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasarstates that, after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (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 ofa labor certification. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
non citizen 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 dete1mining 
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 non citizen'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, 
1 In announcing this new framework, we vacatedourp1iorprecedent decision,MattcrofNew York State Dep't of Transp., 
22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
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. 2 
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 off er is warranted. 
Initially, the Petitioner described the proposed endeavor as a plan "to continue working my area [sic] 
of expertise, namely international and national coaching, and applying expertise to develop and create 
new ways and methods within the areas of my expertise supporting top universities, then manage and 
develop a new culture for tennis accessible to all communities." The Petitioner also indicated that he 
is developing a "product that you insert in a tennis racket that gives you active [ a ]nalytics about your 
[t]ennis game." 
In response to the Director's request for evidence (RFE), the Petitioner elaborated on his endeavor, 
stating that he "seeks employment in the field of tennis instruction, eventually owning and operating 
his own tennis academy, which will be engaged in in-house leagues and ladders, private and group 
lessons, and training drills." The Petitioner also submitted a business plan, dated 2021, in response to 
the RFE. The business plan indicated that the Petitioner intends to operate a tennis academy in 
I I California, employing a total of five workers, including the Petitioner, in each of the first 
five years of the academy's operation, "and possibly more as the [ c ]ompany grows." The Petitioner 
described the other employees as one "admin support" and three "tennis pros." The Petitioner further 
asserted the following: 
[My] endeavor has significant potential to benefit the United States. Regular physical 
activity has many positive health benefits, including protection against chronic disease, 
improved physical and mental health and cognitive function, and better health-related 
quality of life. Moreover, the lack of physical activity is associated with higher health 
care costs and utilization. 
The Director acknowledged that the Petitioner's plan to start his own tennis academy to provide tennis 
instruction and promote regular physical activity has substantial merit. However, the Director 
concluded that "the [P]etitioner has not presented sufficient information and evidence to demonstrate 
that the prospective impact of his proposed endeavor rises to the level of national importance." The 
Director found "that the [P]etitioner has not shown his proposed endeavor in this case stands to 
sufficiently extend beyond his business and clients to impact the industry more broadly. Nor has the 
[P]etitioner shown that his operation of a tennis academy would have broader implications for the field 
of tennis." The Director further concluded that "the [P]etitioner has not demonstrated that the specific 
endeavor which he proposes to undertake has significant potential to employ U.S. workers or 
otherwise offers substantial positive economic effects for the region or nation." The Director also 
2 SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs. 
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addressed comments made in a letter by an adjunct professor of business and sports management at 
I lco llege, submitted in support of the petition, finding those comments to be "conjecture and 
speculation to claim that the [P]etitioner will contribute to the American economy," citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (BIA 1972). 
On appeal, the Petitioner first asserts the following: 
On demand, the Director should seek further information and clarification of the 
Beneficiary's proposed endeavor and its broader implications. The Director may issue 
another RFE requesting additional evidence addressing this critical element. Unless 
and until the Petitioner conveys a meaningful understanding of the proposed endeavor, 
the Director cannot proceed with an assessment of the Petitioner's eligibility for a 
national interest waiver within the context of Dhanasar 's three-prong analysis. Once 
the Petitioner provides the necessary information about the proposed endeavor, the 
Director shall then analyze the supporting evidence under the Dhanasar framework to 
determine whether the Petitioner has established eligibility for the national interest 
waiver. 
The Petitioner fmiher asserts on appeal the following: 
My initial plan was to create a tennis academy only however [sic] with the increase of 
demand in [p ]ickleball being the fastest growing sport in the US[,] I have expanded my 
business to both [t]ennis and [p ]ickleball. I have created [p ]ickleball private lessons, 
clinics, socials, a summer camp for both kids and will [sic] plan to add an adult camp 
in the future after seeing the tremendous success of [p ]ickleball in the area and hire 
more coaches to have broader implications of the proposed endeavor. 
The Petitioner also asserts on appeal for the first time that he "will donate 3 0% of my time teaching 
low-income, disabled, and minority kids" and that his tennis academy "will happily support both 
seniors and veterans who served and sacrificed for the freedom we enjoy and the freedoms others hope 
to have." The Petitionerreasserts on appeal that"[t]ennis provides its players with numerous physical, 
social, and mental benefits." The Petitioner further reasserts that he is developing a "product that you 
insert in a tennis racket that gives you active analytics about your tennis game" but that "[i]n order for 
me to file a patent and get investors for my device, none of the active investors can if my green card 
application is denied or pending." 
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 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 manufacturingprocesses 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. 
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The Petitioner's first assertion, in which he demands the Director to submit an additionalRFE because 
"[u]nless and until the Petitioner conveys a meaningful understanding of the proposed endeavor, the 
Director cannot proceed with an assessment of the Petitioner's eligibility for a national interest 
waiver," is misplaced. Petitioners bear the burden to establish eligibility for the requested benefit. 
Section 291 of the Act. Petitioners do not have the prerogative to compel the Director to submit an 
RFE to them. See id; see also 8 C.F.R. § 103 .2(b )(8)(ii) (providing USCIS the discretion either to 
"deny the benefit request for lack of initial evidence or for ineligibility or request that the missing 
initial evidence be submitted within a specified period of time as determined by USCIS"). 
Furthermore, the Petitioner's suggestion on appeal that the record may not "convey[] a meaningful 
understanding of the proposed endeavor" such that "an assessment of the Petitioner's eligibility for a 
national waiver" cannot be conducted undermines his assertion that he is eligible for a national interest 
waiver. See 8 C.F.R. § 103 .2(b )(1 )("An applicantorpetitionermustestablish that he or she is eligible 
for the requested benefit at the time of filing the benefit request and must continue to be eligible 
through adjudication."). 
Next, we note that the Petitioner asserts for the first time on appeal that, in contrast to his "initial plan 
... to create a tennis academy only," he has expanded his business to include pickle ball. The Petitioner 
also asse1is for the first time on appeal that he "will donate 30% of my time teaching low-income, 
disabled, and minority kids" and that his tennis academy "will happily support both seniors and 
veterans who served and sacrificed for the freedom we enjoy and the freedoms others hope to have." 
A petitioner must establish eligibility at the time of filing the petition. See 8 C.F.R. § 103 .2(b )(1). A 
petition may not be approved at a future date after a petitioner becomes eligible under a new set of 
facts. Matter of Katigbak, 14 I&N Dec. 45 (Reg. Comm'r 1971 ). Because the Petitioner asserts, for 
the first time on appeal, that his endeavor will include expanding his business to include pickle ball, 
that he will donate time to teaching low-income, disabled, and minority children, and that he will 
support seniors and veterans, those are a new set of facts that did not exist at the time of filing the 
petition in 2020. Therefore, none of the assertions made for the first time on appeal, presenting a new 
set of facts, may establish eligibility, and we need not address those assertions further. See 8 C.F.R 
§ 103.2(b )(l); see also MatterofKatigbak, 14 I&N Dec. 45. 
Next, the Petitioner's reassertion on appeal that "[t]ennis provides its players with numerous physical, 
social, and mental benefits" is misplaced. 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, to assess national importance, we focus on the "specific endeavor that the [ noncitizen] 
proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. As the Director concluded, the 
Petitioner's endeavor of operating a tennis academy, providing "players with numerous physical, 
social, and mental benefits," as the Petitioner asserts, has merit. However, the generalized observation 
that tennis provides players physical, social, and mental benefits does not address how the specific 
endeavor will have "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," which are 
aspects of national importance. See id. at 889-90. Similarly, the Petitioner's reassertion on appeal 
that the endeavor entails developing a "product that you insert in a tennis racket that gives you active 
analytics about your tennis game" has merit; however, the record does not establish how the product 
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will have national or even global implications within a particular field, have other substantial positive 
economic effects, or otherwise demonstrate national importance. See id. 
As the Director observed, the Petitioner's tennis academy will benefit the business that he owns and 
operates, and it will benefit his clients; however, at the time of the Director's decision, the record did 
not establish how the academy will provide benefits that extend beyond his own business and its 
clients, having broader implications or the field of tennis or other substantial positive economic effects. 
As noted above, several of the Petitioner's assertions made on appeal may not establish eligibility 
because they present a set of facts that did not exist at the time of filing. The Petitioner does not 
otherwise address that issue on appeal; rather, he reasserts generally that tennis provides players 
various benefits, which again does not address how the specific endeavor may have national 
importance. See id. 
The Petitioner also does not address on appeal the Director's conclusion that '"the [P]etitioner has not 
demonstrated that the specific endeavor which he proposes to undertake has significant potential to 
employ U.S. workers or otherwise offers substantial positive economic effects for the region or 
nation." Other than employing himself, the Petitioner's business plan indicated that his tennis 
academy would employ one "admin support" and three "tennis pros," in each of the first five years of 
operation "and possibly more as the [ c ]ompany grows." However, the record does not establish how 
employingthose four workers demonstrates "significant potential to employ U.S. workers or has other 
substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90. 
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 (197 6) ("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 the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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