The Petitioner, an athletic instructor and coach, 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).
The Director ofthe Texas Service Center denied the petition, concluding that the record did not establish that the Petitioner qualifies for (1) classification as a member of the professions holding an advanced degree, and (2) a national interest waiver. The matter is now before us on appeal. 8 C.F.R. § 103.3.
The Petitionerbears the burden ofproofto demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter ofChristo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
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) ofthe Act. A United States bachelor's degree or foreign equivalent degree followed by five years ofprogressive experience in the specialty is equivalent to a master's degree.
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced degree or an individual of exceptional ability, 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 of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship and Immigration Services (USCIS) 1 may, as matter of discretion , grant a national interest waiver if the petitioner demonstrates that: See also Poursina v. USCIS, 936F.3d 868 (9th Cir.2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in nature).
- 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.
Advanced Degree Professional
The Director did not dispute that the Petitioner is a member of the professions, and that she holds a degree equivalent to a U.S. baccalaureate degree. But the Director determined that the Petitioner had notmet herburden ofproofto establish atleastfive years ofprogressive post-baccalaureate experience in the specialty, equivalent to a master's degree. While there are some gaps in the evidence submitted, we conclude that the record, as a whole, suffices to establish the required experience by a preponderance of the evidence. Even if the director has some doubt as to the truth, if a petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is "more likely than not" or "probably" true, the petitioner has satisfied the standard ofproof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989).
Nationalinterestwaiver
The remaining issue to be determined is whether the Petitioner has established that a waiver of the requirement of ajob offer,and thus a labor certification, would be in the nationalinterest. The Director d e t e r m i n e d t h a t t h e P e t i t i o n e r h a d e s t a b l i s h e d t h e s u b s t a n t i a l m e r i t o f h e r p r o p o s e d e n d e a v o r , a n d that she is well-positioned to advance that endeavor. But the Director concluded that the Petitioner had not established the national importance of the proposed endeavor, or that, on balance, a waiver ofthe job offer requirement would be beneficial to the United States.Did not show the waiver outweighs labor certification
In 2004, the Petitioner earned a bachelor's degree in physical education from thel !University of !Brazil. Since that time, she has worked for schools, clubs, and other entities, both as a swimming instructor and as a teacher in other athletic areas such as gymnastics or general physical education. The Petitioner entered the United States in September 2017 as an F-1 student.
The first prong of the Dhanasar national interest test, 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. In determining whether the proposed endeavor has national importance, we consideritspotentialprospectiveimpact. MatterofDhanasar,26T&NDec.at889.
When the Petitioner filed the petition inFebruaty 2019,sheprovided a verybroadandgeneraldescription of her proposed endeavor: My focus is to continue my career as a Sports Coach and Instructor in the fields of Synchronized Swimming, Swimming, Water Gymnastics, Rhythmic Gymnastics, Dance & Classical Ballet and Physical Education in the United States,joining U.S. Elementa1y, Middle and/or High Schools, academies, clubs, sport leagues, corporations and institutions helping the population, principally children, to achieve better life quality and p. 3 influence the practice of physical activities as well as supporting the Sport and Fitness Industry. . . .Proposed endeavor too vague I would also be an asset to companies, schools, academies, sport leagues and fitness clubs that intend to promote regular physical activity because, for maximal public health benefit, schoolphysicaleducationprograms canpreparechildrenfor alifetimeofphysical activity. Companiesandeducationinstitutionswouldcertainlybenefitfrommyin-depth knowledge and I will be able to collaborate with other public health professionals in developing and evaluating school physical education programs that will improve the health ofthe nation's youth.
ThePetitionerlisted20joblistingsasexamplesofpositionsthatshe"intend[s]topursue." Fourteenof these listings are for swimming coaches or instructors; five are for physical education teachers or fitness coaches; and one is for a junior gymnastics coach. The prospective employers include public and private schools, athletic clubs, and local government entities.
The Petitioner did not explain how employment in any of the positions described would have national importance. The Petitioner did not establish any readily evident benefit beyond a limited number of local students. Furthermore,thepositionsdescribedareinseveralsomewhatrelatedbutdistinctoccupations, and the Petitioner did not claim that she would work in all these occupations. Dhanasar requires the Petitioner to establish the national importance of"the specific endeavor that the foreign national proposes toundertake." Id.at889. Astatedintentiontoseekemploymentinarangeofoccupationsisnotaspecific proposed endeavor.
The Petitioner submitted background information on a range ofrelated topics such as the importance of physical fitness; drowning prevention; and the decline ofU.S. performance in international synchronized swimming competition, but she did not explain how her work would address these issues at a nationally important level.
In a request for evidence, the Director stated that the Petitioner had not established that her "proposed work has broader implications for [her] field, as opposed to being limited to the students ... [whom the Petitioner] intend[s] to instruct."Benefits limited to an employer or its clients
In response, the Petitioner stated that her "primary focus is [to] act as the owner and Swimming Coach and Instructor, operating her own business ... [that] will cater to the needs of children, adults, and individualswithspecialneeds." Anaccompanyingbusinessplanindicatesthatthenewcompany"will provide swimming instruction for children and adults" and "develop its own teaching, learning, and practicingmethodologyinordertoprovidehigh-qualityswimmingcoaching." Thebusinessplanalso indicates that the company "will implement an adaptive program developed by [the Petitioner] specially designed to benefit children and adults with a range of special needs including autism, cerebral palsy, spina bifida, Down syndrome, sensory disorders, ADHD, and visual impairment." These aspects ofthe newly submitted plans in response to the request for evidence, like the Petitioner's original plans, involve a small group of students who would train under the Petitioner's direction or authority.
The Petitioner asserted that she "will establish a franchise business . . . in order to target the entire U.S.," and "contribute to the overall U.S. economy by providing high-quality services, as well as generating tax revenue and creating new job openings.... By the end ofYear 5 the Company will indirectly create at least 16 jobs." The Petitioner did not establish that this level of expansion and employment constitutes "significant potential to employ U.S. workers or has other substantial positive economic effects" as contemplated in Matter o fDhanasar, 26 I&N Dec. at 890.Job creation or economic claims unsupported
Fmihem1ore, the Petitioner established the new company in 12019 Iafter she filed the petition. Whenshefirstfiledthepetition,thePetitionerdidnotindicatethatshewouldestablishherown business. Rather, as discussed above, she stated an intention to find employment with a school, fitness club, or other institution. The program for swimmers with special needs also did not appear in the initial filing. Atthetimeoffiling,thePetitionerlistedseveralpossiblejobopportunities,someofwhichdidnot involve swimming at all. Rather, they involved other areas in which the Petitioner has some degree of experience, such as gymnastics.
Apetitionermustmeetalleligibilityrequirementsatthetimeoffilingthepetition. 8C.F.R.§103.2(bXl). A petitioner may not make material changes to a petition that has already been filed in an effort to make anapparentlydeficientpetitionconformtoUSCISrequirements. SeeMatterofIzummi,22I&NDec.
169, 175 (Comm'r 1998). Here, when the Director asked the Petitioner for more details about her proposed endeavor, the Petitioner responded by significantly changing the endeavor, rather than establish The Director denied the petition, stating that "the petitioner has not shown her proposed endeavor [as originally described] ... stands to sufficiently extend beyond her trainees, students, and sports clients to impact the industry more broadly than her specific programs."
On appeal, the Petitioner states that the business plan includes "a detailed description of her proposed endeavor ... establishing [its] national importance," and that the Director did not give due consideration to "an Economic Impact Analysis ... produced by an independent source." The Director acknowledged the economic impact analysis in the decision. But the analysis carries questionable weight; it indicates that the "objective [of the Petitioner's business] is to suppmi U.S. companies to operate more efficiently by cutting unnecessary costs, improving their business practices, and implementing best practices in business management." This objective appears to describe a business consulting firm rather than a swim coaching practice.
More significantly, the Director stated that the Petitioner had substantially revised her proposed endeavor aftershefiledthepetition. TheDirectordeterminedthatthenewproposalasdescribedinthebusiness plancannotestablisheligibilityatthetimeoffiling. ThePetitionerdoesnotaddressthisissueonappeal although it is of central importance because the Petitioner relies heavily on the revised plans.
T h e P e t i t i o n e r a l s o r e p e a t s g e n e r a l a r g u m e n t s a b o u t t h e i m p o r t a n c e o f i n c r e a s e d p h y s i c a l e d u c a t i o n in schoolsandtheeconomicimpactofherfield. Aproposedendeavordoesnothavenationalimportance ThischangeaffectsotherelementsoftheDhanasarnationalinterestframework. Forexample,thequestionofwhether the Petitioner is well-positioned to continue working as a swimming instructor, based on decades ofexperience, is very different from whether she is well-positioned to operate an expandingbusiness franchise, an area in which she claims no prior experience or expertise. the national importance ofthe proposed endeavoras described at the time offiling. p. 5 simplybecauseitrelatestoanationalgoal. Indeterminingwhethertheproposedendeavorhasnational importance,weconsideritspotentialprospectiveimpact. Anundertakingmayhavenationalimportance for example, because it has national or even global implications within a particular field. Matter of Dhanasar,26I&NDec.at889. ThePetitioner'soriginalproposedendeavorfocusedonteachingasmall number ofstudents, comparable to the teaching activities ofthe petitionerin Dhanasar. We determined in that precedent decision that such teaching activities did not rise to the level of having national importance because they would not impact his field more broadly. Id. at 893. The Petitioner has not established that the impact ofher work, whether in the economy, public health, or some other area, would be significant enough to be ofnational importance.
Fmihem1ore, the record raises questions about the extent to which the Petitioner intends to pursue her newly-describedbusinessventure. Shepreparedthebusinessplanspecificallytosupportthepetition;the phrase "EB-2 Visa Supporting Documentation" is printed on the cover page. The Petitioner also submitted copies of email messages showing that she was actively pursuing employment with a number of employers in 2020, and documentation showing that a public elementary school hired her in March 2021. Thisevidenceisconsistentwiththeoriginaldescriptionoftheproposedendeavor.
Differentiterationsoftheproposedendeavorsometimesappeartoconflictwithoneanother. Ontheone hand, the Petitioner cites her business plan on appeal, indicating that she will start a swimming school and oversee its operation and expansion. But the same appeal also includes a letter from the elementary school that hired her in 2021, stating that the school has been unable to locate another qualified candidate The Petitioner has not shown that her proposed endeavor, as originally described, will significantly extend beyond her students to impact education or athletics more broadly at a level indicating national importance. She has not shown that the proposed work offers original innovations that contribute to advancements throughout the field, or otherwise has broader implications. Subsequent material changes to the proposed endeavor cannot retroactively establish eligibility at the time of filing, and the record contains conflicting information about the basic nature of the proposed endeavor.Not eligible at the time of filing For all these reasons, the Petitioner's proposed work does not satisfy the '"national importance" element of the first prong of the Dhanasar framework.
Because the record does not establish the national importance of her proposed endeavor, the Petitioner has not demonstrated eligibility for a national interest waiver. Because this issue determines the outcome Labor certification exists in order to address local worker shortages. Therefore, the lack of qualified U.S. applicants would be a factor in favorofapproving labor certification, ratherthangrounds for waiving it.
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).
The implication is that the Petitioner intends to run her own business and work for the for the position. elementary school, but she does not explain how she would fill both these positions at the same time. of the Petitioner's appeal, we reserve the appellate arguments regarding the third Dhanasar prong.
Conclusion
Because the Petitioner has not met the required "national importance" element ofthe first prong of the Dhanasar analytical framework, we conclude as a matter of discretion that she has not established eligibilityforanationalinterestwaiver. Wewillthereforedismisstheappeal.
ORDER: The appeal is dismissed.