dismissed EB-2 NIW Case: Dentistry

.. 
..... ---<'~~'I",~,~.,..~-":. 
p.l<';;v~~ .. ,\!. 
; () e ~ ... , ___ ~~ Q"!t..c","",,"; . '-'-:f:":~"'" n.~ 111l.Va;:;;.Cm. C,l f',_~',,""jCh' ~~.o..l J c.o~ y 
~; .~ .-r' ~ .. -: '-" 
I, ;... ,~ ... v \: 
PUBLIC COpy 
DATE: APR 0 2 2012 OFFICE: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.c. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inq uiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks 10 reconsider or reopen. 
Thank you, 
~.~ 
~ Perry Rhew lJ 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks to classify the beneficiary under section 203(b )(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C § 1153(b)(2), as a member of the professions holding an advanced 
The beneficiary is a dentist who seeks employment with the dental practices of_ 
The petitioner asserts that an exemption from the requirement of a job offer, and thus 
of a labor certification, is in the national interest of the United States. The director found that the 
beneficiary qualifies for classification as a member of the professions holding an advanced degree, but 
that the petitioner has not established that an exemption from the requirement of a job offer would be in 
the national interest of the United States. 
On appeal, the petitioner provides a statement and indicates that a brief will be forthcoming within 30 
days. To date, more than ten months after the filing of the appeal, the record contains no further 
substantive submission from the petitioner. The AAO therefore considers the record to be complete as 
it now stands. 
Part 1 of the Form 1-140 petition identifies_ Notice of Entry of 
Appearance as Attorney or Representative, identifies s attorney of 
record. Review of the petition form, however, indicates tha is the petitioner. An applicant 
or petitioner must sign his or her application or petition. 8 CF.R. § 103.2(a)(2). In this instance, Mr. 
j rather than any official of Dr. __ actice, electronically signed Part 8 of the Form 
1-140, "Signature." Thus, Mr._ and not Dr. , has taken resp~ity for the content of 
the petition. This will not affect the adjudication of the appeal, because Mr. _s personally filed the 
appeal. Furthermore, the petitioner need not be the beneficiary's intending employer. The U.S. 
Citizenship and Immigration Services (USCIS) regulation at 8 CF.R. § 204.5(k)(1) states that anyone 
acting in the beneficiary's behalf may be the petitioner. The AAO considers both the petition and the 
appeal to have been properly filed, albeit by Mr._ rather than_ At the same time, 
because Dr. is not an affected party in this proceeding, the AAO will disregard Form G-28, and 
consider Mr. to be self-represented. 
Section 203(b) of the Act states, in pertinent part: 
(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. 
Page 3 
(B) Waiver of Job Offer-
(i) ... the 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. 
The director did not dispute that the beneficiary qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, 101st Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29,1991), states: 
The Service [now USCIS] believes it appropriate to leave the application of this test 
as flexible as possible, although clearly an alien seeking to meet the [national interest] 
standard must make a showing significantly above that necessary to prove the 
"prospective national benefit" [required of aliens seeking to qualify as "exceptional."] 
The burden will rest with the alien to establish that exemption from, or waiver of, the 
job offer will be in the national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the beneficiary seeks employment in an area of 
substantial intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in 
scope. Finally, the petitioner seeking the waiver must establish that the beneficiary will serve the 
national interest to a substantially greater degree than would an available United States worker having 
the same minimum qualifications. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the beneficiary's past record justifies projections of future benefit to the national interest. The 
petitioner's subjective assurance that the beneficiary will, in the future, serve the national interest cannot 
suffice to establish prospective national benefit. The intention behind the term "prospective" is to 
require future contributions by the beneficiary, rather than to facilitate the entry of an alien with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. 
Page 4 
The AAO also notes that the regulation at 8 C.F .R. § 204.5(k)(2) defines "exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By 
statute, aliens of exceptional ability are generally subject to the job offer/labor certification 
requirement; they are not exempt by virtue of their exceptional ability. Therefore, whether a given 
beneficiary seeks classification as an alien of exceptional ability, or as a member of the professions 
holding an advanced degree, that beneficiary cannot qualify for a waiver just by demonstrating a 
degree of expertise significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140 petition on September 17, 2010. In a letter accompanying the 
initial submission, the petitioner stated: 
[The beneficiary] meets the requirements for waiver of the labor certification 
requirement because of the nature of the job offer and the nature of the work to be 
performed. [The beneficiary's] unique skills as a Dentist, particularly in the manner 
in which she treats and educates minority children, teens and young adults in oral 
hygiene and the importance of dental care as part of an overall approach to a healthy 
life and lifestyle, substantially outweighs the national interest of protecting US 
workers through the labor certification process .... 
[The beneficiary's] contact with these patients is very often their first contact with a 
Dentist or the first contact after an extended period of dental neglect. ... 
[The beneficiary] also explains the role that diet plays in good dental health and how 
this relates to one's general health and well being for the long term. Minority patients 
are far more likely to have diets that are high in sugar which is a major factor in tooth 
decay as well as obesity and contributes to the increase in the incidence of diabetes in 
a population which is statistically more likely to develop this disease .... 
[H]er actions contribute to benefit a growing population of individuals which itself is 
in the "national interest," through achieving both improvements in dental and general 
health which serves to lower overall health care costs. In addition, because the dental 
practice in which she seeks to be employed services a large African-American 
population, the owner of that practice desires the services of a Dentist who is also an 
individual "of color" and such a position would not be certifiable by the Department 
of Labor because of the restrictive requirement. 
The initial submission included no evidence except documentation of the beneficiary's dental degree 
from Tufts University. 
On January 12, 2011, the director issued a request for evidence, instructing the petitioner to submit 
evidence to meet the guidelines set forth in NYSDOT. In response, the petitioner stated that the 
beneficiary "has made application to the U.S. Patent Office ... for a patent for a 'Tongue Protector 
Page 5 
and Method of Using Same.' According to [the beneficiary] her invention significantly eases patient 
care while also affording protection from accidental injury during the course of various dental 
procedures." The record shows that the beneficiary filed the provisional application for patent on 
September 22,2010, five days after the filing of the Form 1-140 petition. 
~oner also asserted that the beneficiary's "intended employment ... as a dentist in. 
___ office is intrinsically important to improve dental health in the general population but 
more specifically to improve dental health in the black community which faces unique problems vis­
a-vis dental health." The petitioner submits a copy of a newspaper article discussing statistics 
relating to dental health in the African-American community. The petitioner also repeats the 
assertion that labor certification is not a realistic option because it does not take race into account as 
_ wishes to do in filling the position. 
The director denied the petition on March 15, 2011. The director acknowledged the substantial 
intrinsic merit of dentistry, but observed that intrinsic merit is only one prong of the three-pronged 
NYSDOT test. The director found that the petitioner had not shown the national scope of the 
beneficiary's intended work, or distinguished the beneficiary from other qualified dentists. 
Regarding the beneficiary's invention, the director noted that the beneficiary filed the provisional 
patent application after the petition's filing date. The petitioner must establish that the beneficiary is 
eligible for the requested benefit at the time of filing the application or petition. See 8 C.F.R. 
§ 103.2(b)(1). USCIS cannot properly approve the petition at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'l Comm'r 1971). 
Furthermore, an alien cannot secure a national interest waiver simply by demonstrating that he or she 
holds a patent. Whether the specific innovation serves the national interest must be decided on a 
case by case basis. NYSDOT, 22 I&N Dec. 221 n.7. In this instance, the petitioner has not even 
shown that the beneficiary holds a patent. The beneficiary filed a provisional patent application, 
which, according to the filing receipt from the U.S. Patent and Trademark Office, is an 
administrative placeholder that "will not be examined for patentability" unless the inventor files a 
patent application within 12 months of the provisional application. 
On appeal, the petitioner claims to have established "the beneficiary's individual potential to benefit 
the country on a 'national impact' level by providing dental services to a patient base[] comprised 
predominantly of African-American[s] and individuals of [H]ispanic descent." The petitioner does 
not explain how the beneficiary's work would have a "national impact," when the number of patients 
she could treat would amount to a negligible fraction of the overall population of the United States. 
It may well be true that there are ethnic disparities in terms of dental health, but this does not mean 
that a dentist automatically qualifies for a national interest waiver by promising to focus her efforts 
on treating patients from disadvantaged populations. The petitioner has not established that the 
clinical work of one dentist is national in scope. 
Page 6 
Also, the AAO acknowledges the petitioner's claim that Dr. wishes to hire a dentist of 
African or Hispanic descent (although the record contains no statement from Dr. _himself to 
that effect), and that a potential employer cannot specify a prospective employee's desired race or 
ethnicity on a labor certification. Nevertheless, the wording of the statute and regulations does not 
indicate that the unavailability of labor certification automatically results in an exemption from the 
job offer requirement. Rather, the petitioner must show that a waiver would be in the national 
interest of the United States. An employer's desire to reject qualified applicants on the basis of race 
does not meet that standard. The petitioner asserts: "the appearance of even ... one seemingly 
qualified candidate could lead to a denial of the labor certification," but fails to explain how that 
hypothetical outcome would be counter to the national interest. The patients would still have access 
to the services of a qualified dentist, and the petitioner has submitted nothing to show that the 
services rendered by the beneficiary are in any way objectively superior to those provided by other 
qualified dentists. 
The petitioner asserts that the beneficiary has "demonstrated her potential impact upon the dental 
community by continuing to develop new tools and techniques that will benefit the national dental 
community th[u]s having a national impact." A petitioner may not make material changes to a 
petition that has already been filed in an effort to make an apparently deficient petition conform to 
USCIS requirements. See Matter of /zllmmi, 22 I&N Dec. 169, 175 (Comm'r 1998). At the time of 
filing, the petitioner made no representation that the beneficiary would serve the national interest as 
an inventor of dental devices. The petitioner introduced that claim only in response to the request 
for evidence. Furthermore, the plural reference to "new tools and techniques" fails to recognize that 
the petitioner has documented only one new tool. The petitioner has submitted no evidence to show 
that this tool is in use in any dentist's office. The petitioner has consistently emphasized clinical 
patient treatment; there is no reason to believe that the beneficiary has devoted, or will devote, 
substantial time to inventing or improving dental devices. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, rather than 
on the merits of the individual beneficiary. On the basis of the evidence submitted, the petitioner has 
not established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U .S.c. § 1361. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed.