dismissed EB-2 NIW Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
In Re : 11271265 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 10, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner 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 Texas Service Center denied the Form 1-140, Immigrant Petition for Alien Worker, 
concluding that the Petitioner is not qualified for classification as a member of the professions holding 
an advanced degree, and that he did not establish that a waiver of the required job offer, and thus of 
the labor certification, would be in the national interest. On appeal, the Petitioner asserts that the 
Director erred in denying the petition . 
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 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 ( emphasis added) , 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 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 definition: 
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 ( emphasis added). 
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). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification (emphasis added), U.S. Citizenship and Immigration 
Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a 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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national 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 consider its potential 
prospective impact. 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 See also Poursina v. USC1S, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
2 
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 foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national 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 foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, 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. 3 
II. ANALYSIS 
A. Member of the Professions Holding an Advanced Degree 
As noted above, the Director concluded that the Petitioner did not qualify for EB-2 classification as a 
member of the professions holding an advanced degree.4 Specifically, the Director raised concerns with 
the submitted employment letters and ultimately concluded that they did not establish that the Petitioner 
had at least five years of progressive post-baccalaureate experience. However, the Petitioner's profession 
is dentist, orthodontist, and dental surgeon.5 As stated above, the definition at 8 C.F.R. § 204.5(k)(2) 
clearly states, in pertinent part, that "[i]f a doctoral degree is customarily required by the specialty, the 
alien must have a United States doctorate or a foreign equivalent degree." In other words, the 
regulation does not allow for a combination of education and experience if "a doctoral degree is 
customarily required by the specialty." 
According to the "How to Become a Dentist" section of the Occupational Outlook Handbook ( OOH) 
entry for dentists (SOC code 29-1020): 6 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 Although the Director did not address whether the Petitioner qualifies as an individual of exceptional ability in his 
decision, we briefly note that the Petitioner initially presented evidence insufficient to establish his eligibility as an 
individual of exceptional ability in accordance with 8 C.F.R. § 204.S(k). Later, in response to the Director's request for 
evidence (RFE) the Petitioner asserts "because [I meet] the Advanced Degree classification, we are not providing 
additional evidence to show Exceptional Ability." On appeal, the Petitioner also limits his claim to be a member of the 
professions holding an advanced degree. 
5 In the initial filing, the Petitioner indicates in part 6. of the petition that he will perform services as a "dentist/researcher," 
who will "examine, diagnose, and treat diseases, injuries, and malformations of teeth and gums." He states "[ m ]y career 
plan in the United States is to work with a health care facility to provide expert advice and treatment to patients ... I have 
extensive experience working in clinics with a specialization in [ o ]rthodontics ... and intend to fill a position as a [ d]ental 
[ s ]urgeon." 
6 See Bureau of Labor Statistics, U.S. Dep't of Labor, Occupational Outlook Handbook, Dentist, 
https://www.bls.gov/ooh/healthcare/dentists.htm#tab-4 (last accessed August 10, 2021). 
3 
Dentists must be licensed in the state in which they work. Licensure requirements vary 
by state, although candidates usually must have a Doctor of Dental Surgery (DDS) or 
Doctor of Medicine in Dentistry/Doctor of Dental Medicine (DMD) degree from an 
accredited dental program and pass written and clinical exams. Dentists who practice 
in a specialty area must complete postdoctoral training ( emphasis added). 
Dentists typically need a DDS or DMD degree from a dental program that has been 
accredited by the Commission on Dental Accreditation (CODA). Most programs 
require that applicants have at least a bachelor's degree and have completed certain 
science courses, such as biology or chemistry. Although no specific undergraduate 
major is required, programs may prefer applicants who have a bachelor's degree in a 
science, such as biology. 
Applicants to dental schools usually take the Dental Admission Test (DAT). Dental 
schools use this test along with other factors, such as grade point average, interviews, 
and recommendations, to admit students into their programs. 
All dental specialties require dentists to complete additional training before practicing 
that specialty. This training is usually a 2- to 4-year residency in a CODA-accredited 
program related to the specialty, which often culminates in a postdoctoral certificate or 
master's degree. Oral and maxillofacial surgery programs typically take 4 to 6 years 
and may result in candidates earning a joint Medical Doctor (MD.) degree ( emphasis 
added). 
The Petitioner has provided copies of his diplomas and academic transcripts which reflect that he has 
obtained: 
• A four-year degree in dentistry froml I University; 
• Academic training in orthodontics culminating in a certificate of specialist in 
orthodontia frottj !University; and, 
• A master's of business administrative degree (MBA) in management and market for 
healthcare offices and clinics. 
The Petitioner presents evaluations of his foreign academic credentials, which are insufficient to 
establish that the Petitioner holds the foreign degree equivalent of a U.S. DDS or DMD degree. 7 For 
7 In cases involving foreign degrees. [USCIS] may favorably consider a credentials evaluation performed by an 
independent credentials evaluator who has provided a credible, logical and well-documented case for such an equivalency 
determination that is based solely on the alien's foreign degree(s) .... Opinions rendered that are merely conclusory in 
nature, which do not provide a credible roadmap that would clearly lay out the basis for the opinions are not persuasive. 
See Adjudicator ·s Field Manual Chapter 22.2(j)(l )(C), https://www.uscis.gov/sites/default/files/document/policy-Manual 
-afm/afm22-extemal.pdf. 
4 
instance, the letter from! ll lat U.S. Credential Evaluations, concludes 
based upon the Petitioner's academics and "more than 19 years of experience, [the Petitioner] has not 
less than the equivalent of a Master's in Dentistry - Concentration in Orthodontics." The letter entitled 
I "analris and advisory evaluation of request for national interest waiver" froml lof 
College lists the Petitioner's post-secondary academic history, but does not indicate the 
equivalencies of the Petitioner's foreign education relative to program(s) of study at an accredited 
institution of higher learning within the United States. Lastly, the "course by course evaluation report" 
issued by Education Credential Evaluators states that the Petitioner has the foreign degree equivalent 
of four years of study in dentistry and a master's degree in orthodontics. 8 
Considering the totality of the evidence, the Petitioner has not established that he held the requisite 
doctoral degree for his profession at the time the petition was filed in 2018. The Petitioner must 
establish eligibility at the time of filing the petition. 8 C.F.R. § 103 .2(b )( 1 ). A petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. See Matter of 
Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998); Matter of Katigbak, 14 I&N Dec. 45, 49 
(Comm. 1971). 
For all of these reasons, the Petitioner has not demonstrated that at the time of filing of the petition he 
held the foreign equivalent degree of a DDS or DMD degree, and therefore, has not established that he is 
a member of the professions holding an advanced degree consistent with the regulatory definition at 8 
C.F.R. § 204.5(k)(2). 
B. National Interest Waiver 
The remaining issue to be determined is whether 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. Considering 
the Petitioner's remaining claims of eligibility under the Dhanasar analysis, we agree with the Director's 
ultimate conclusions. For example, we agree with the Director that the Petitioner's general articles 
and reports discussing the field of dentistry establish his proposed endeavor meets the substantial merit 
portion of the first prong. Regarding the national importance portion of the first prong, although the 
Petitioner 's statements reflect his intention to continue working in his field in the United States, he 
has not offered sufficient information and evidence to demonstrate that the prospective impact of his 
proposed endeavor, treating patients in a dental surgery practice, rises to the level of national 
It is important to understand that any educational equivalency evaluation performed by a credentials evaluator or school 
official is advisory in nature and that the final determination continues to rest with [USCIS]. Id. (See also Matter of Caron 
International, 19 I&N Dec. 791 (Comm . 1988), Matter of Sea, Inc. 19 I&N Dec. 817 (Comm 1988), and Matter of Ho, 19 
I&N Dec. 582 (BIA 1988).) 
8 Further, the Petitioner appears to acknowledge that he is not qualified to work as a dentist in the United States. For 
example , he states in his January 2019 letter that he "intends to revalidate his dentistry degree, which will allow [me] to 
serve as a Dentist and Dental Surgeon." In his January 2020 letter he notes "[b]y the end of2020 I intend to take [an 
English language proficiency test]. This way I will have all the necessary requirements to apply at the universities in 
early 2021, and I expect to obtain my graduate degree in 2024." Lastly, the Petitioner indicates in his September 2020 
letter that he intends to "register in a two (2) year program at a U.S. dental school of medicine - the last phase in order to 
validate my license in the nation." The Petitioner does not identify any particular location within the United States where 
he will practice dental surgery. 
5 
importance. 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 his field more broadly. Id. at 893. 
Similarly, the record in this matter does not demonstrate that the Petitioner's proposed endeavor stands 
to sufficiently impact U.S. interests or the dental industry more broadly at a level commensurate with 
national importance. In addition, he has not demonstrated that his specific proposed endeavor has 
significant potential to employ U.S. workers or otherwise offer substantial positive economic effects 
for our nation. The record does not show that benefits to the regional or national economy resulting from 
the Petitioner's business would reach the level of "substantial positive economic effects" contemplated 
by Dhanasar. Id. at 890. Accordingly, the Petitioner 's proposed work does not meet the first prong 
of the Dhanasar framework. 9 
The second prong shifts the focus from the proposed endeavor to the Petitioner. The Petitioner asserts 
that his past work in a dental practice abroad and his education establish he is well positioned to 
advance the proposed endeavor. However, by his own admission he lacks the academic credentials 
required for obtaining a license to practice dentistry in the United States.10 He also acknowledges in 
his January 2020 letter that he is ineligible to obtain a license to practice dentistry, noting "I have 
already taken Part 1 of the necessary licensing examinations within the American Dental Association: 
National Board of Dental Examination [NBDE]. .. with the approval of this petition , I will complete 
Part 2 of the examination [in order to] begin working within the dental field." In his September 2020 
letter he states that completing a two-year program at a U.S. dental school of medicine" is needed to 
obtain a license to practice in his field in the United States. 
We examine the factors set forth in Dhanasar to determine whether, for instance, the individual's 
progress towards achieving the goals of the proposed endeavor, a record of success in similar efforts, 
or generation of interest among relevant parties supports a finding that he or she is well positioned to 
advance the proposed endeavor. Id. at 890. Here, the Petitioner has not demonstrated that he is well 
positioned to practice dentistry in the United States. The record does not reflect sufficient interest 
from potential customers, users, investors, or other relevant entities or individuals to demonstrate that 
he is well positioned to advance his dental practice, nor does the evidence show that the Petitioner 's 
past record of running a business, business plan for future activities, and progress towards achieving 
his goals rise to the level of rendering him well positioned to advance the proposed endeavor. For 
these reasons, he has not established that he satisfies the second prong of the Dhana sar framework. 
As explained above, 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. Because the Petitioner has not established the national importance of his proposed 
endeavor and that he is well positioned to advance his endeavor as required by the first and second 
prongs of the Dhanasar framework, he is not eligible for a national interest waiver. Accordingly, 
discussion of the balancing factors under the third prong would serve no meaningful purpose. 
9 Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010). 
10 We incorporate our previous discussion regarding the Petitioner 's lack of the requisite U.S. DDS or DMD degree or 
foreign equivalent degree. 
6 
III. CONCLUSION 
The Petitioner has not established that he satisfies the regulatory requirements for classification as a 
member of the professions holding an advanced degree. Furthermore, as the Petitioner has not met the 
requisite three prongs set forth in the Dhanasar analytical framework, we find that he has not established 
he is eligible for or otherwise merits a national interest waiver as a matter of discretion. The appeal 
will be dismissed for the above stated reasons, with each considered as an independent and alternate 
basis for the decision. 
ORDER: The appeal is dismissed. 
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