dismissed EB-2 NIW Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAY 08, 2024 In Re: 31034341 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a dental surgeon/entrepreneur, 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 of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that a waiver of the classification's job offer requirement, and thus of the labor certification, 
would be in the national interest. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christa's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will dismiss the appeal because the Petitioner did not establish that her proposed endeavor has 
national importance and thus, she did not meet the national importance requirement of the first prong 
of the Dhanasar framework. See Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). Because this 
identified basis for denial is dispositive of the Petitioner's appeal, we decline to reach and hereby 
1reserve the Petitioner's appellate arguments regarding the remaining Dhanasar prongs. 
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. Section 203(b)(2)(B)(i) of the Act. Next, a 
petitioner 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 l&N Dec. at 889, provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
1 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("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 of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
I 
and Immigration Services (USCIS) may, as matter of discretion,2 grant a national interest waiver if 
the petitioner demonstrates that: 
• 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. 
11. ANALYSIS 
The Director determined that the Petitioner was a member of the professions holding an advanced 
degree. The remaining issue to be determined is whether the Petitioner qualifies for a national interest 
waiver under the Dhanasar framework. 
The Petitioner, a dental surgeon/entrepreneur, states that she has over 15 years of experience working 
as a dental surgeon. She plans to develop and expand her "own business in the nation" by opening the 
Iin South Carolina. Her clinic will "be focused on offering dentistry 
services with a personalized treatment plan in a friendly atmosphere." 
With her initial filing, the Petitioner submitted evidence of her education and experience, a "definitive 
statement," a letter from counsel, a business plan, recommendation and support letters, industry 
reports, and articles. 
Following initial review, the Director issued a Request for Evidence (RFE), allowing the Petitioner an 
opportunity to submit additional evidence in attempt to establish her eligibility for the underlying EB-
2 classification and for the national interest waiver.3 The Petitioner's RFE response included a letter 
from counsel, a business plan, an updated resume, and evidence of her education and experience. 
After reviewing the Petitioner's RFE response, the Director determined that the Petitioner had 
established that she was eligible for EB-2 classification as an advanced degree professional. Next, the 
Director concluded that the Petitioner did not demonstrate the national importance of her proposed 
endeavor or that, on balance, it would be beneficial to the United States to waive the requirements of 
a job offer, and thus of labor certification. However, the Director determined that the Petitioner was 
well positioned to advance the proposed endeavor. 
Specifically, the Director determined that the Petitioner had not demonstrated how one dentist would 
have broad implications that rise to the level of national importance, trigger substantial positive 
economic impacts, or would have a significant potential of creating jobs for U.S. workers. Regarding 
the Petitioner's contention that her proposed endeavor would provide jobs for 28 workers, and generate 
substantial wages paid, the Director concluded that the proffered numbers meant that each worker 
would on average receive $34,285.71 per year. Thus, the Director concluded that the record did not 
establish how paying 28 workers in South Carolina an average wage of $34,285.71 would have 
substantial positive economic effects to reach the level of national importance. Moreover, the Director 
2 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) Uoining the Ninth, Eleventh, and D.C. Circuit Courts (and 
Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
3 The Director noted in the RFE that the Petitioner's proposed endeavor had substantial merit. 
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determined that the Petitioner did not establish the basis for the projected numbers in the business 
plan. The Director also noted that the Petitioner cited to her background and qualifications in attempt 
to demonstrate her proposed endeavor's national importance, but that those factors related to the 
second Dhanasar prong.4 
In addition, the Director determined that the general articles and industry reports did not specifically 
address the Petitioner's proposed endeavor. With regards to the expert opinion, the Director 
determined that the writer's assertions that the Petitioner met all three prongs of the Dhanasar 
framework were unsupported by the evidence. Finally, the Director concluded that the evidence did 
not demonstrate that the proposed endeavor would broadly enhance societal welfare, cultural 
enrichment, or artistic enrichment. 
In counsel's cover letter submitted in response to the RFE, the Petitioner contends that the proposed 
endeavor is "national in scope, as her professional activities relate to a matter of national importance 
and impact, particularly because they generate substantial ripple effects" on "general dentistry, oral 
rehabilitation, preventative health care, restorative dental care, cosmetic dentistry, dental implants, 
[and] periodontic specialist [sic]." Further, counsel argues that the Petitioner's proposed endeavor 
"impacts nationally important matters, and the national economy" by "offering economic convenience 
and agility, as he [sic] is able secure the success of small and medium-sized U.S. companies." 
Additionally, counsel argues that the endeavor will "[p]]romot[ e] growth and expansion and driving 
[sic] change with innovation" and will '"[s]timulat[e] the domestic job market" leading to the 
"generation of new jobs for American workers." 
On appeal, the Petitioner argues that the Director's decision ''imposed novel substantive and 
evidentiary requirements." Further, the Petitioner contends that the Director "did not apply the proper 
standard of proof.. .instead imposing a stricter standard, and erroneously applied the law." Last, the 
Petitioner argues that the Director did not give "due regard" to various pieces of evidence. 
Regarding the Petitioner's argument that the Director's decision "imposed novel substantive and 
evidentiary requirements," the Petitioner asserts that she submitted sufficient evidence to meet the 
regulatory and category standards. Therefore, she asserts that the Director did not properly apply the 
correct standard of proof. Although the evidentiary standard in immigration proceedings is 
preponderance of the evidence, the burden is on the Petitioner alone to provide material, relevant, and 
probative evidence to meet that standard. Section 291 of the Act, 8 U.S.C. § 1361. A petitioner's 
burden of proof comprises both the initial burden of production, as well as the ultimate burden of 
persuasion. Matter of Y-B-, 21 l&N Dec. 1136, 1142 n.3 (BIA 1998); also see the definition of burden 
of proof from Black 's Law Dictionary (11th ed. 2019) (reflecting the burden of proof includes both 
the burden of production and the burden of persuasion). A petitioner must satisfy the burden of 
production. This burden requires that a petitioner to produce evidence in the form of documents, 
testimony, etc. that adheres to the governing statutory, regulatory, and policy provisions sufficient to 
have the issue decided on the merits. 
4 Dhanasar's second prong, not the first, focuses on whether a noncitizen is well positioned to advance their proposed 
endeavor. 
3 
We agree with the Petitioner that the correct standard of proof in her case is preponderance of the 
evidence. Matter of Chawathe, 25 l&N Dec. 369 (AAO 2010). In putting forward the argument that 
the Director did not correctly apply this standard, the Petitioner does not explain exactly how the 
standard was wrongly applied. The essence of the Petitioner's argument seems to be that because the 
Director did not determine that the Petitioner's proposed endeavor was of national importance, the 
Director misapplied the standard. This argument does not show how the Director erred but instead 
relies on unsubstantiated assertions. See, e.g., Matter of S-M-, 22 l&N Dec. 49, 51 {BIA 1998) 
("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any 
evidentiary weight"). We conclude that the evidence does not support Petitioner's argument regarding 
the asserted misapplication of the standard of proof. 
Regarding the national importance component of Dhanasar's first prong, we consider the proposed 
endeavor's potential prospective impact in determining whether it has national importance. Matter of 
Dhanasar, 26 l&N Dec. at 889. The relevant question is not the importance of the field, industry, or 
profession in which the individual will work; instead we focus on the "the specific endeavor that the 
foreign national proposes to undertake." See Id. In Dhanasar, we further noted that "we look for 
broader implications" of the proposed endeavor and that "[a ]n undertaking may have national 
importance for example, because it has national or even global implications within a particular field." 
Id. We also stated that "[a]n endeavor that has significant potential to employ U.S. workers or has 
other substantial positive economic effects, particularly in an economically depressed area, for 
instance, may well be understood to have national importance." Id. at 890. 
The Petitioner asserts that she "firmly believe[ s] that [her] proposed endeavor in the United States 
holds national importance." She further contends that her proposed endeavor, establishing thel I I "is not just a run-of-the-mill business venture." Rather, Petitioner's endeavor "promises 
to have far-reaching positive impacts on both the local and national levels." Additionally, the 
Petitioner states that "through her commitment to training and staying updated with modern dental 
technologies and techniques, [she] will contribute significantly to addressing the ongoing dentist 
shortage in the United States." She argues that her "commitment to training and staying updated" has 
"broader implications for the dental profession, the healthcare system, and the welfare of the American 
public." The Petitioner has not provided evidence to substantiate her assertions that her "commitment 
to training and staying updated" would have an impact beyond herself and the clients she plans to 
serve. In the same way that the teaching activities proposed by the petitioner in Dhanasar were not 
shown to have a broader impact on the field of STEM education, here the Petitioner has not 
demonstrated that her proposed endeavor would have broader implications in the field of dental 
surgery on the U.S. economy beyond the clients benefiting from the Petitioner's services. Matter of 
Dhanasar, 26 l&N Dec. at 893. 
Further, the Petitioner argues that her business plan "clearly outlines the creation of 28 news job 
opportunities for U.S. workers within the first five years." She argues that her endeavor will "enhance 
societal welfare by providing accessible and affordable dental to underserved communities." On 
appeal, the Petitioner does not contest the Director's determination that the projected average annual 
wage per worker would be $34,285.71 per year. Nor does the Petitioner explain how the record 
demonstrates that paying 28 workers in South Carolina $34,285.71 shows that her endeavor would 
have substantial positive economic effects. We agree with the Director's determination that the 
Petitioner's projections are unsupported by the record. Even if we accepted the projections, which we 
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do not, the Petitioner has not demonstrated how paying 28 workers on average $34,285.71 indicates 
that her proposed endeavor reaches the level of national importance. 
The Petitioner also argues on appeal that her proposed endeavor "will enhance societal welfare by 
providing accessible and affordable dental care to underserved communities." In her "Definitive 
Statement," she contends that her business "is to be headquartered in South Carolina and is set to serve 
HUBZones areas." 5 Further, the Petitioner's business plan states that in the first year the I I
I I will establish its headquarters in I I' followed by additional branches in 
I Iin the following years. While the Petitioner correctly points out that all three 
of her business' prospective locations will be in Small Business Administration (SBA) HUBZones, 
she does not put forward evidence of her business' participation in the SBA's HUBZone program. 
The record does not contain other evidence demonstrating that the Petitioner's proposed endeavor will 
benefit underserved communities. Thus, we are unable to conclude that her endeavor will have 
substantial positive economic effects, particularly in an economically depressed area, to reach the level 
of national importance. 
Finally, the Petitioner contends that the expert opinion she submitted from Dr.I is "both 
relevant and credible" and "aligns with [her] claims regarding the national importance of her 
endeavor." The Director determined that the expert opinion letter did not establish that the Petitioner's 
proposed endeavor stands to impact the broader field or otherwise has implications rising to the level 
of national importance. We acknowledge that the opinion letter includes an analysis of the national 
importance of the Petitioner's proposed endeavor. While the Petitioner states that her proposed 
endeavor will involve the opening of her dental clinic, Dr. I I refers to the Petitioner's 
"innovative research" contributing "to studies related to the nature and basis of implant failure." 
Additionally, Dr. I lnotes that the Petitioner is "well-qualified to provide educational lectures 
on oral hygiene and train professionals in the field." While both research and lecturing are 
commendable, the Petitioner has not articulated those activities as being part of her endeavor. 6 
As a matter of discretion, we may use opinion statements submitted by the Petitioner as advisory. 
Matter of Caron Int'l, Inc., 19 I&N Dec. 791, 795 (Comm'r 1988). However, we will reject an opinion 
or give it less weight if it is not in accord with other information in the record or if it is in any way 
questionable. Id. We are ultimately responsible for making the final determination regarding an 
individual's eligibility for the benefit sought; the submission of expert opinion letters is not 
presumptive evidence of eligibility. Id. Here, Dr. I Iadvisory opinion is of little probative 
value as it does not meaningfully address the Petitioner's proposed endeavor in detail as it concerns 
national importance. Dr. does not specify how the Petitioner's endeavor will have prospective 
impact on the United States, including national or global implications on dentistry, the potential to 
employ U.S. workers, or positive economic effects. His opinion letter is general in nature, concluding 
that the Petitioner's "expertise and skills" would "greatly benefit" the United States in a nationally 
important way. "In determining national importance, the officer's analysis should focus on what the 
5 According to the Small Business Administration's website, "[t]he HUBZone program fuels small business growth in 
historically underutilized business zones with a goal of awarding at least 3% of federal contract dollars to HUBZone­
certified companies each year." 
6 The Petitioner must resolve inconsistencies in the record with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
5 
beneficiary will be doing rather than the specific occupational classification." 6 USCIS Policy Manual 
F.5(D){l), https://www.uscis.gov/policy-manual. Dr.I ldoes not provide asubstantive analysis 
of the Petitioner's proposed endeavor. 
As the Petitioner has not established the national importance of her proposed endeavor as required by 
the first prong of the Dhanasar framework, she is not eligible for a national interest waiver and further 
discussion of the second and third prongs would serve no meaningful purpose. As noted above, we 
reserve the Petitioner's appellate arguments regarding the remaining Dhanasar prongs. See INS v. 
Bagamasbad, 429 U.S. at 25. 
111. CONCLUSION 
As the Petitioner has not met all of the requisite three prongs set forth in the Dhanasar analytical 
framework, we conclude that she has not established she is eligible for or otherwise merits a national 
interest waiver as a matter of discretion. 
ORDER: The appeal is dismissed. 
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