remanded EB-2 NIW Case: Physical Fitness

U.S. Citizenship 
and Immigration 
Services 
In Re : 23071785 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : DEC . 5, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a physical fitness trainer, seeks second preference immigrant classification as an 
individual of exceptional ability, 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 Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree, but that he had not 
established that a waiver of the required job offer , and thus of the labor certification, would be in the 
national interest. 
On appeal, the Petitioner submits a brief asserting that he requested immigrant classification as an 
individual of exceptional ability rather than as a member of the professions holding an advanced 
degree and that he is eligible for a national interest waiver. 1 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision. 
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. 
1 The Director's decision did not render a detennination regarding the Petition er's eligibility as an individual of exceptional 
ability . 
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 ofjob offer-
(i) National interest waiver. ... [T]he 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. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
Profession means one of the occupations listed in section 10l(a)(32) of the Act, as well 
as any occupation for which a United States baccalaureate degree or its foreign 
equivalent is the minimum requirement for entry in the occupation. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii). 
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Furthermore, 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 I&N Dec. 884 (AAO 2016). Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) 
may, as matter of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that 
the foreign national's proposed endeavor has both substantial merit and national importance; (2) that 
the foreign national 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. 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
We withdraw the Director's determination that the Petitioner qualifies as a member of the professions 
holding an advanced degree. To qualify as a member of the professions, an individual must meet "one 
of the occupations listed in section 10l(a)(32) of the Act, as well as any occupation for which a United 
States baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the 
occupation." 8 C.F.R. 204.5(k)(2). 3 The Petitioner has not demonstrated that his occupation, physical 
fitness trainer, qualifies as a member of the professions. The position is not one of the occupations listed 
in section 101(a)(32) of the Act and the Petitioner has not shown that a United States baccalaureate 
degree or its foreign equivalent is the minimum requirement for entry in his occupation. 4 
Further, in order to show an individual holds an advanced degree, the petition must be accompanied 
by "[a]n official academic record showing that the alien has a United States advanced degree or a 
foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the Petitioner may present 
"[aa ]n official academic record showing that the alien has a United States baccalaureate degree or a 
foreign equivalent degree, and evidence in the form of letters from current or former employer(s) 
showing that the alien has at least five years of progressive post-baccalaureate experience in the 
specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). The Petitioner has not presented evidence indicating that he 
meets either of these regulatory requirements. Accordingly, the Petitioner has not established that he 
qualifies as a member of the professions holding an advanced degree, and the Director's determination 
on this issue is withdrawn. 
B. Exceptional Ability 
The Director's decision did not address whether the Petitioner satisfies at least three of the six regulatory 
criteria at 8 C.F.R. § 204.5(k)(3)(ii) and has achieved the level of expertise required for exceptional 
ability classification. The Petitioner argues on appeal that classification as a member of the professions 
2 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 Section 101 (a)(32) of the Act states "[t]he term 'profession' shall include but not limited to architects, engineers, lawyers, 
physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries." 
4 For example, the U.S. Department of Labor's Occupational Outlook Handbook states: "Fitness trainers and instructors 
typically need a high school diploma to enter the occupation." See https://www.bls.gov/ooh/personal-care-and­
service/fitness-trainers-and-instructors.htm#tab-4, accessed on December 2, 2022. 
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holding an advanced degree "was not the basis for [his] eligibility; it has always been his exceptional 
ability, instead." On remand, the Director should consider the Petitioner's arguments and evidence to 
determine if he has met three of the regulatory criteria at 8 C.F.R. § 204.5(k)(3)(ii). If so, the Director 
should then conduct a final merits determination to conclude whether the Petitioner has achieved the level 
of expertise significantly above that ordinarily encountered for exceptional ability classification. See 
8 C.F.R. § 204.5(k)(2). 
C. National Interest Waiver 
While the Director concluded that the Petitioner did not establish that a waiver of the required job offer 
would be in the national interest, the Petitioner must first demonstrate qualification for the underlying 
EB-2 visa classification, as either an advanced degree professional or an individual of exceptional 
ability. Since the Director's determination of this first threshold requirement was withdrawn, we also 
withdraw the Director's conclusion that the Petitioner had not established eligibility under prongs one, 
two, and three of the Dhanasar framework. On remand, the Director should issue a new national 
interest waiver determination if he finds the Petitioner demonstrates qualification for the underlying 
EB-2 visa classification as an individual of exceptional ability. 
III. CONCLUSION 
We are therefore remanding the petition for the Director to consider whether the Petitioner has satisfied 
the eligibility requirements for classification as an individual of exceptional ability. In addition, the 
Director should properly apply all three prongs of the Dhanasar analytical framework to determine if 
the Petitioner has established that a waiver of the requirement of a job offer, and thus a labor 
certification, would be in the national interest. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for further 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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