dismissed EB-2 NIW Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: WL. 17, 2023 In Re: 27447324 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks second preference immigrant classification as an individual of exceptional ability, 
as well as a national interest waiver of the job offer requirement attached to this EB-2 classification . 
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 
qualify for classification as a professional holding an advanced degree or an individual of exceptional 
ability, and 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 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 Christa's, Inc., 26 I&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. Section 203(b )(2)(B)(i) of the Act. Next, a 
petitioner must then demonstrate they merit a discretionary waiver of the job offer requirement "in the 
national interest." Section 203(b)(2)(B)(i) of the Act. Matter of Dhanasar, 26 I&N Dec. 884, 889 
(AAO 2016) provides that U.S. Citizenship and Immigration Services (USCIS) may, as matter of 
discretion, 1 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 the proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature) . 
II. ANALYSIS 
As a preliminary matter, the Petitioner asserts through counsel on appeal that in denying the petition, 
the Director "imposed novel substantive and evidentiary requirements beyond those set forth in the 
regulations." However, counsel does not point to specific examples of this within the Director's 
request for evidence (RFE) and denial. Importantly, counsel also does not offer detailed analysis 
explaining the particular ways in which the Director "imposed novel substantive and evidentiary 
requirements" in denying the petition, supported by pertinent law or regulation. 
The Petitioner further alleges through counsel that the Director "did not apply the proper standard of 
proof in this case, instead imposing a stricter standard, to [her] detriment." Except where a different 
standard is specified by law, the "preponderance of the evidence" is the standard of proof governing 
immigration benefit requests. See Matter of Chawathe, 25 I&N Dec. at 375; see also Matter of 
Martinez, 21 I&N Dec. 1035, 1036 (BIA 1997); MatterofSooHoo, 11 I&N Dec. 151,152 (BIA 1965). 
Accordingly, the "preponderance of the evidence" is the standard of proof governing national interest 
waiver petitions. See 1 USCIS Policy Manual, E.4(B), https://www.uscis.gov/policy-manual. While 
counsel asserts on appeal that the Petitioner has provided evidence sufficient to demonstrate her 
eligibility for the EB-2 classification and a national interest waiver, counsel does not further explain 
or identify any specific instance in which the Director applied a standard of proof other than the 
preponderance of evidence in denying the petition. 
The Petitioner's counsel also mistakenly and repeatedly references the Petitioner in the masculine 
pronoun case in her appeal brief and letter submitted in response to the Director's request for evidence 
(RFE). The record lacks an explanation for this inconsistency as the Petitioner references herself in 
the feminine pronoun case. Thus, we must also question the accuracy of counsel's assertions on appeal 
and whether the information provided is correctly attributed to this particular petitioner. 
A EB-2 Classification 
As stated above, the first step to establishing eligibility for a national interest waiver is demonstrating 
qualification for the underlying EB-2 visa classification, as either an advanced degree professional or 
an individual of exceptional ability. On appeal, the Petitioner does not assert nor does the record 
establish that she is eligible for the EB-2 classification as a member of the professions holding an 
advanced degree. Therefore, she must establish that she qualifies as an individual of exceptional 
ability. 
The Petitioner indicates her intention to be employed as a dentist should this petition be approved. A 
petitioner must provide documentation that satisfies at least three of six regulatory criteria to meet the 
initial evidence requirements for this classification. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In denying 
the petition, the Director determined that the Petitioner fulfilled only the academic record criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(A), which the record supports. 
In the appeal brief: the Petitioner generally asserts that she meets at least three of the regulatory criteria 
for classification as an individual of exceptional ability, but she does not sufficiently identify the 
specific criteria that she believes she qualifies for, nor does she explain how the Director erred in 
concluding that she only met the academic record criterion. 
2 
Evidence in the form of letter(s) from current or former employer(s) showing that the 
[individual] has at least ten years o_ffull-time experience in the occupation for which he 
or she is being sought. 8 C.F.R. § 204.5(k:)(3)(ii)(B) 
The petition was filed in October 2020; the Petitioner indicated in her Application for Alien 
Employment Certification, Form ETA-750 Part B, and in part 6 of the petition that she will be employed 
as a dentist, quoting her prospective job duties verbatim from DOL's Occupational Information 
Network (O*NET) summary report for "Dentists, General." The O*NET Summary Report for 
"Dentists, General," may be viewed athttps://www.onetonline.org/link/summary/29-1021. Thus, the 
record must establish that she had at least ten years of full-time experience as a dentist as of October 
2020, the time of filing the petition. 8 C.F .R. § 103 .2(b )(1 ). 
The Director concluded that the Petitioner did not meet this criterion, indicating that while letters had 
been submitted from the Petitioner's current and former employers, the letters did not establish the 
requisite years of employment in the dentist occupation. Specifically, the Director discussed the letters 
and concluded that her collective work history in the field of dentistry at the time of filing the petition 
comprised six months of work as a general dentist, thirteen months of work as a dental assistant, and 
four months of part-time work as a dental hygienist. 
On appeal, the Petitioner asserts that she has "19 years of experience, based on her solid academic and 
professional background." She also references her employment in the United States as a dentist in the 
United States in the years since her petition was filed. However, the record does not establish that she 
was employment in the "Dentist, General" occupation for a period of time covering at least ten years 
prior to the date of filing of this petition. 8 C.F.R. § 103.2(b)(l). For this reason, the criterion has not 
been met. 
A license to practice the pro_fession or cert[fication for a particular pro_fession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C) 
On appeal, the Petitioner acknowledges that the Director determined that she did not meet this 
criterion, but she does not identify or discuss the specific evidence, if any, in the record that should be 
considered as part ofthis determination. When dismissing an appeal, we generally do not address issues 
that were not raised with specificity on appeal. Issues or claims that are not raised on appeal are 
deemed to be "waived." 2 Since the Petitioner did not address this issue with specificity on appeal, we 
deem the issue waived and conclude the Petitioner has not met this criterion. 
Evidence that the alien has commanded a salary, or other remuneration for services, 
which demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
On appeal, the Petitioner notes the Director's conclusion that she did not meet this criterion, but she 
does not identify or discuss the specific evidence, if any, in the record that should be considered as part 
2 See, e.g., Matter ofM-A-S-, 24 T&N Dec. 762, 767 n.2 (BIA 2009). The courts' view of issue waiver varies from circuit 
to circuit. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed 
waived); Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (finding that an issue referred to in an affected 
party's statement of the case but not discussed in the body of the brief is deemed waived); but see Hoxha v. Holder, 559 
F .3d 157, 163 (3d Cir. 2009) (issue raised in notice of appeal form is not waived, despite failure to address in the brief). 
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of this determination. Therefore, we deem the issue waived and conclude the Petitioner has not met this 
criterion. 
Evidence o_fmembership in pro_fessional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
On appeal, the Petitioner notes the Director's conclusion that she did not meet this criterion, but she 
does not identify or discuss the specific evidence, if any, in the record that should be considered as part 
of this determination. Therefore, we deem the issue waived and conclude the Petitioner has not met this 
criterion. 
Although the Petitioner asserts her eligibility for another criterion on appeal, the record does not currently 
establish that she has fulfilled the initial evidentiary requirement of three criteria under 8 C.F.R. § 
204.5(k)(3)(ii). As she is ineligible for the EB-2 classification, we will not address the additional 
criterion. 
In summary, the record supports the Director's finding that the Petitioner did not meet at least three of the 
six regulatory criteria for exceptional ability at 8 C.F.R. § 204.5(k)(3)(ii). Therefore, we need not provide 
a final merits determination to evaluate whether the Petitioner has achieved the level of expertise 
required for the exceptional ability aspect of the EB-2 classification. 
B. National Interest Waiver 
The Petitioner has not established that she is eligible for the EB-2 classification. Since this issue is 
dispositive of the Petitioner's appeal, we decline to reach and hereby reserve the appellate arguments 
regarding the remaining issues, including whether she is eligible for a national interest waiver as a 
matter of discretion. 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 MatterofM-F-O-, 28 I&N Dec. 408,417 n.14 (BIA 2021) (declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). 
III. CONCLUSION 
The Petitioner has not demonstrated that she qualifies for the EB-2 classification under section 
203(b )(2)(A) of the Act. Accordingly, the Petitioner has not established eligibility for the immigration 
benefit sought. 
ORDER: The appeal is dismissed. 
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