dismissed EB-2 NIW Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 17, 2024 In Re: 31651484 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an individual interested in employment in the dental field, seeks classification as a 
member of the professions holding an advanced degree or of exceptional ability, Immigration and 
Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a national 
interest waiver of the job offer requirement that is attached to this employment based second 
preference (EB-2) classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). 
U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the 
required job offer, and thus of a labor certification, when it is in the national interest to do so. See 
Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining 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(and Third in an unpublished decision) in concluding that USCIS' decision to grant or deny a national 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). 
The Director of the Texas Service Center denied the petition, concluding the Petitioner did not 
demonstrate eligibility as an individual of exceptional ability for classification in the employment 
second preference permanent immigrant category and had not established 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 pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 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, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. The regulation at 8 C.F .R. § 204.5(k)(2) defines 
advanced degree to mean any United States academic or professional degree or a foreign equivalent 
degree above that of a 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 and so permit classification as an EB-2 permanent immigrant. 
Progressive experience can be demonstrated by the Petitioner by providing letters from current or 
former employers showing that they have at least five years of progressive post-baccalaureate 
experience in the specialty. The regulation at 8 C.F.R § 204.5(g)(l) requires letters from current or 
former employers include the name, address, and title of the writer, and a specific description of the 
duties performed. 
In the alternative, an individual can demonstrate eligibility for second preference permanent immigrant 
classification as an individual of exceptional ability. 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 the 
sciences, arts, or business." To demonstrate exceptional ability, a petitioner must submit at least three of 
the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii): 
(A) An official academic record showing that the alien has a degree, diploma, certificate, 
or similar award from a college, university, school, or other institution ofleaming relating 
to the area of exceptional ability; 
(B) Evidence in the form ofletter(s) from current or former employer(s) showing that the 
alien has at least ten years of full-time experience in the occupation for which he or she is 
being sought; 
(C) A license to practice the profession or certification for a particular profession or 
occupation; 
(D) Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability; 
(E) Evidence of membership in professional associations; or 
(F) Evidence of recognition for achievements and significant contributions to the industry 
or field by peers, governmental entities, or professional or business organizations. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish the beneficiary's eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself, establish eligibility for this classification. We 
will then conduct a final merits determination to decide whether the evidence in its totality shows that 
they are recognized as having a degree of expertise significantly above that ordinarily encountered in the 
field. 
If we conclude that a petitioner has an advanced degree or is of exceptional ability such that they have 
established their eligibility for classification as an immigrant in the EB-2 classification, we evaluate the 
national interest in waiving the requirement of a job offer and thus a labor certification. Whilst 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). Dhanasar states that USCIS may as a matter of discretion grant a national 
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interest waiver of the job offer, and thus of the labor certification, to a petitioner classified in the EB-
2 category if they demonstrate that (1) the noncitizen's proposed endeavor has both substantial merit 
and national importance, (2) the noncitizen 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 the 
noncitizen 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 noncitizen. To determine whether 
the noncitizen is well positioned to advance the proposed endeavor, we consider factors including 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, progress towards achieving the proposed endeavor, and 
the interest of potential customers, users, investors, or other relevant entities or individuals are also 
key considerations. 
The third prong requires the petitioner to demonstrate that, on balance of applicable factors, it would 
be beneficial to the United States to waive the requirements of a job offer and thus of a labor 
certification. USCIS may evaluate factors such as whether, in light of the nature of the noncitizen' s 
qualification or the proposed endeavor, it would be impractical either for the noncitizen to secure a 
job offer or for the petition to obtain a labor certification; whether, in light of the nature of the 
noncitizen's qualification or the proposed endeavor, it would be impractical either for the noncitizen 
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 noncitizen's 
contributions; and whether the national interest in the noncitizen's contributions is sufficiently urgent 
to warrant forgoing the labor certification process. Each of the factors 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. 
II. ANALYSIS 
A. National Interest Waiver 
On appeal, the Petitioner asserts that their proposed endeavor is substantially meritorious and 
nationally important, that they are well-positioned to advance their proposed endeavor, and that on 
balance of applicable factors it would be beneficial to the United States to waive the requirements of 
a job offer and thus of a labor certification so that they can undertake their proposed endeavor. But 
the evidence the Petitioner has submitted into the record is not relevant, material, or probative to 
support their assertion of eligibility for a national interest waiver under the Dhanasar analytical 
framework. So, we agree with the Director, albeit on a different basis, to conclude that a favorable 
exercise of discretion to waive the job offer requirement and thus a labor certification is not warranted. 
The Petitioner's initial petition contained a "autobiografia" which described their professional and 
personal history in the field of dental surgery. The Petitioner also submitted several recommendation 
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letters, their resume/curriculum vitae, professional certifications, and educational credentials. The 
record reflects the Petitioner functioned as a dental surgeon in their own country and has been working 
in the United States as a dental assistant. 
But Part 6 of the Form 1-140 submitted by the Petitioner did not contain any basic information about 
the Petitioner's proposed endeavor. So, the Director issued a request for evidence (RFE) instructing 
the Petitioner to furnish details concerning their proposed endeavor and submit a completed and 
executed Form ETA 750B. The Petitioner's response to the RFE and their executed Form ETA 750B 
indicated they intended to work in the United States as an endodontist. 
The Director subsequently issued a second RFE requesting the Petitioner submit evidence supporting 
their eligibility for classification as an employment based second preference permanent immigrant as 
well as a waiver of the requirement of a job offer, and thus a labor certification, in the national interest. 
The Petitioner's response to the second RFE introduced a new endeavor that significantly departed 
from the endodontist endeavor the Petitioner proposed in their initial filing. In the response to the 
RFE, the Petitioner transformed themselves from an endodontist into an entrepreneur owning and 
operating a business entity concerning the training and development of dental assistants. The proposed 
endeavor essentially morphed into the Petitioner serving as the chief executive officer of their own 
entrepreneurial business. But the addition of the Petitioner's entrepreneurial business did not enhance 
or clarify the Petitioner's proposed endeavor to be an endodontist. To the contrary, it transformed the 
proposed endeavor into a wholly different one. Through their entrepreneurial entity, the Petitioner 
proposed to focus on "assisting the preparation of professionals" chiefly foreign dental assistants, by 
offering "online, in-person and hands-on, qualification and improvement courses" with an aim to 
"reach the entire American territory." None of their duties involved providing services resembling 
those performed by an endodontist. In fact, the company's business plan reflected that no endodontists 
and only dental assistants, receptionists, information clerks, and film and video editors would be 
employed in the endeavor. 
The Petitioner's materially significant transformation into an entrepreneur rendered their proposed 
endeavor ill-defined and amorphous. A petitioner must establish eligibility for the benefit they are 
seeking at the time the petition is filed. See Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 
1971). A petitioner may not make material changes to a petition, such as converting a plan to be an 
endodontist into being the owner of a business with no connection to endodontic services. See Matter 
of Izummi, 22 I&N Dec. 169, 176 (Assoc Comm'r 1998). The Petitioner's transfiguration of their 
proposed endeavor from the initial petition to the response to the RFE introduced significant ambiguity 
into their proposed endeavor which prevented an analysis into its substantial merit or national 
importance. 
A petitioner must identify the specific endeavor they propose to undertake. See Matter ofDhanasar, 
26 I&N Dec. at 889. It is not possible to determine the substantial merit and national importance of 
an endeavor when a Petitioner cannot consistently articulate the nature of the endeavor. So, we 
conclude that the Petitioner has not established that their proposed endeavor is of substantial merit and 
national importance. And because the Petitioner has not established that their proposed endeavor has 
substantial merit and national importance, as required by the first Dhanasar prong, they are not eligible 
for a national interest waiver. We reserve our opinion regarding the second and third Dhanasar prongs 
applicability to this proposed endeavor as well as the Petitioner's eligibility for EB-2 immigrant 
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classification. 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 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on 
appeal where an applicant is otherwise ineligible). 
B. Employment Based Second Preference Category Eligibility 
We withdraw the Director's conclusion regarding the Petitioner's categorical ineligibility for EB-2 
permanent immigrant classification. The Petitioner did not specify if they sought EB-2 classification 
as an advanced degree professional or as an individual of exceptional ability. In support of their 
educational qualifications, the Petitioner submitted a copy of their titulo de cirurgiao dentista 
accompanied by several professional certificates issued by a variety of entities in subjects related to 
the dental field. 
The Director issued a request for evidence (RFE) seeking evidence of the Petitioner's exceptional 
ability and did not seek evidence to evaluate the Petitioner's eligibility for classification as an 
advanced degree professional. 
The record contains the Petitioner's titulo de cirurgiao dentista issued by _________ 
in I I Brazil. The Educational Database for Global Education (EDGE), maintained by the 
American Association of Collegiate Registrars and Admissions Officers (AACRAO), reflects that a 
titulo de cirurgiao dentista earned after a four- or five-year course of study in Brazil is the single source 
equivalent to a first professional degree in dentistry in the United States. 
The record also contains documents styled as "historico escolar" or "school transcript" that describe 
the course of study for the titulo de cirurgiao dentista having consisted of four "terms." The evidence 
in the record does not adequately establish with material, relevant, or probative evidence how long a 
"term" lasted such that we can conclude whether the Petitioner earned the titulo de cirurgiao dentista 
after a four- or five-year course of study. 
So, we will withdraw the Director's conclusion that the Petitioner was ineligible for EB-2 
classification. And, since the resolution of the issues pertaining to the Petitioner's eligibility for a 
waiver of the job offer requirement, and thus of a labor certification, under the Dhanasar analytical 
framework are dispositive of this appeal, further investigation and analysis of the Petitioner's 
categorical eligibility for EB-2 classification by issuing a request for evidence would serve no legal 
purpose. Nevertheless, the Petitioner should be prepared to address their categorical eligibility for 
EB-2 classification in any future proceedings requiring a petitioner to demonstrate eligibility as an 
advanced degree professional or individual of exceptional ability. 
III. CONCLUSION 
Because the Petitioner has not established that the Petitioner's proposed endeavor is substantially 
meritorious or nationally important, as required by the first prong of the Dhanasar analytical 
framework, they are not eligible for a national interest waiver. We reserve our opinion regarding 
whether the record demonstrates the Petitioner's categorical eligibility for EB-2 permanent immigrant 
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classification or satisfies the remaining prongs of the Dhanasar analytical framework. See INS v 
Bagamasbad, 429 U.S. at 25; see also Matter ofL-A-C-, 26 I&N Dec. at 526 n.7. 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that the Petitioner does not merit a favorable exercise of discretion to waive the requirement 
of a job offer, and therefore a labor certification. 
ORDER: The appeal is dismissed. 
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