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DismissedNational Interest Waiver · Appeal

Physical education instructor

Education · decided 2023-05-03 · TSC · MAY032023_01B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

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Summary sentence

The Director determined that although the Petitioner qualifies for classification as a member of the professions holding an advanced degree, she did not establish that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. See in text

What the AAO decided

Main reasons given

  • However, the Petitioner does not provide any new evidence or arguments that overcome the Director's determination on any ofthe three prongs of the Dhanasar framework. See in text
Read the full decision (2 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    Full decision

    OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

    Highlighted: Outcome (2) AAO finding (1)Matter of X citation
    Decision header
    U.S. Citizenship Non-Precedent Decision of the and Immigration Administrative Appeals Office Services · In Re: 26387645 Date: MAY 3, 2023 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver)

    The Petitioner, a physical education instructor, seeks employment-based second preference (EB-2) immigrant classification as a member of the professions holding an advanced degree and an individual of exceptional ability, 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 of the Texas Service Center denied the petition. The Director determined that although the Petitioner qualifies for classification as a member of the professions holding an advanced degree, she did not establish 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 ofproof to demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.

    After a petitioner first demonstrates qualification for the underlying EB-2 visa classification, 1 they must then demonstrate they merit a discretionary waiver of the job offer requirement "in the national interest." Section 203(b )(2)(B)(i) ofthe Act. Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016) provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion2, grant a national interest waiver if the petitioner shows:

    • 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.

    1An advanced degree is any United States academic or professional degree or a foreign equivalent degree above that of a bachelor's degree. A United States bachelor's degree or foreign equivalent degree followed by five years of progressive experience in the specialty is the equivalent of a master's degree.

    The Director reviewed and analyzed the Petitioner's claims under the three prongs of Dhanasar and determined that she only established the substantial merit ofher proposed endeavor, which is to operate and work in a physical and postural training company. For instance, in discussing the first prong, the Director acknowledged the Petitioner's submission of a business plan with five-year staffing and growth projections. However, the Director determined that the Petitioner did not substantiate the growth projections or demonstrate that her endeavor will impact the U.S. economy or the fitness and wellness industry. Further, despite recognizing the endeavor's potential to impact the clients it intends to serve, the Director found that the record contains no evidence demonstrating that the Petitioner's work offers original innovations that would contribute to advancements in the fitness and wellness industry. In sum, the Director concluded that the prospective impact of the proposed endeavor does not rise to the level of having national importance with broad implications in the Petitioner's field. On appeal, the Petitioner attempts to address the Director's concerns by reiterating prior claims that emphasize the Petitioner's knowledge and experience, which she claims will "highly benefit" the U.S. population and will "reflect significantly" on the U.S. economy. However, the Petitioner does not provide any new evidence or arguments that overcome the Director's determination on any ofthe three prongs of the Dhanasar framework.

    Upon review of the entire record, we adopt and affirm the Director's decision in its entirety with respect to all three prongs. See Matter ofBurbano, 20 I&N Dec. 872, 874 (BIA 1994); see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of adopting and affirming the decision below has been "universally accepted by every other circuit that has squarely confronted the issue"); Chen v. INS, 87 F3d 5, 8 (1st Cir. 1996) (joining eight U.S. Courts of Appeals in holding that appellate adjudicators may adopt and affirm the decision below as long as they give "individualized consideration" to the case.")

    ORDER: The appeal is dismissed.