dismissed EB-2 NIW Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEPT. 20, 2023 In Re: 28434745 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner is a dentist who 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. § l 153(b )(2). 
The Director of the Texas Service Center determined that the Petitioner did not establish that a waiver 
of the required job offer, and thus of the labor certification, would be in the national interest. 1 
Specifically, applying the three-prong analytical framework set forth in Matter ofDhanasar, 26 I&N 
Dec. 884, 889 (AAO 2016), the Director concluded that the Petitioner: (1) did not establish that his 
endeavor has national importance, 2 (2) did not demonstrate that he is well-positioned to advance the 
endeavor, and (3) did not show that on balance, waiving the job offer requirement would benefit the 
United States. Id. 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 ofChristo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). 
Upon de novo review, we will dismiss the appeal because the Petitioner did not establish that his 
specific proposed endeavor has national importance and thus, be did not meet the national importance 
requirement of the first prong of the Dhanasar framework. See Matter ofDhanasar , 26 I&N Dec. at 
884. Because the identified basis for denial is dispositive of the Petitioner's appeal, we decline to 
reach and hereby reserve the Petitioner's appellate arguments regarding the two remaining Dhanasar 
prongs. 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). 
1 Although the Director did not determine whether the Petitioner qualifies for the underlying EB-2 visa classification , the 
Petitioner has not established her eligibility for a national interest waiver on appeal and we therefore do not need to remand 
the decision for the Director to make an EB-2 determination . 
2 The Director concluded that the Petitioner 's endeavor has substantial merit. 
In denying the petition, the Director pointed out that the Petitioner altered his proposed endeavor after 
being issued a request for evidence (RFE) where he was notified that his initial claimed endeavor to 
work as a dentist was not shown to have national importance. The Director noted that at the time of 
filing, the Petitioner stated that his endeavor was "to work with American dental clinics" where he 
would use his experience in dental surgery and implants. The Director observed that in response to 
the RFE, the Petitioner made a material change to the original endeavor by adding an entrepreneurial 
element that would involve the Petitioner opening and serving as the CEO of his own dental clinic. 
We note that in the original supporting statement, the Petitioner described his proposed endeavor as 
"contribut[ing] to U.S. dental clinics [] by helping to improve their management, organization, and 
control practices as well as ensuring quality services." The Director correctly stated that eligibility 
must be established at the time of filing and that material changes cannot be considered in determining 
the Petitioner's eligibility for a national interest waiver. Material changes notwithstanding, however, 
the Director considered the altered endeavor and concluded that neither it nor the Petitioner's original 
endeavor was shown to have national importance. 
Although the Director acknowledged the Petitioner's submission of an expert opinion letter, which 
states that dental health has national importance, the Director pointed out that the national importance 
analysis focuses on the specific endeavor rather than the general analysis of the expert opinion letter 
regarding the industry of that endeavor. The Director determined that in this case, the Petitioner's 
various endeavors were not shown to potentially benefit the regional or national economy in a way 
that would rise to the level of having national importance. And despite acknowledging the various 
growth projections in a business plan that discussed the Petitioner's revised endeavor to own and 
operate a dental clinic, the Director determined that the Petitioner neither provided corroborating 
evidence in support of those projections nor demonstrated that this endeavor would result in substantial 
positive economic effects for the nation. Regarding the latter, the Director pointed out that the record 
contained no evidence that the Petitioner registered his business or hired any employees, which might 
support the projections in the business plan. The Director also acknowledged the Petitioner's 
submission of support letters but determined that such letters lacked any discussion of the proposed 
endeavor or its national importance and instead focused on the Petitioner's skill and experience, factors 
that are more relevant to the second prong of well-positioned. Ultimately, the Director determined 
that the Petitioner's original endeavor to work as a dentist in a U.S.-based dental clinic: (1) does not 
stand to impact the regional or national population; and (2) has not been shown to have broader 
implications for the field of dentistry. As such, the Director concluded that the Petitioner's proposed 
endeavor does not rise to the level of having national importance. 3 
On appeal, the Petitioner argues that the Director "imposed novel substantive and evidentiary 
requirements beyond those set forth in the regulations." However, the Petitioner does not point to 
specific examples of this within the Director's request for evidence (RFE) or denial. Importantly, the 
Petitioner also does not offer a detailed analysis explaining the particular ways in which the Director 
"imposed novel substantive and evidentiary requirements" in denying the petition. 
3 Despite noting that material changes in the proposed endeavor would not be considered, the Director nevertheless 
determined that the Petitioner did not demonstrate that his altered endeavor - to own and operate a dental practice - has 
national importance. 
2 
The Petitioner further alleges that the Director "did not apply the proper standard of proof in this case, 
instead imposing a stricter standard ... to the detriment of the appellant." 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 (AAO 2010); see also 
Matter ofMartinez, 21 I&N Dec. 1035, 1036 (BIA 1997); Matter ofSao Hoo, 11 I&N Dec. 151, 152 
(BIA 1965). Accordingly, "preponderance of the evidence" is the standard ofproof governing national 
interest waiver pet1t10ns. See generally l USCIS Policy Manual, E.4(B), 
https://www.uscis.gov/policy-manual. While the Petitioner asserts that he has provided evidence 
sufficient to demonstrate eligibility for the EB-2 classification and a national interest waiver, he does 
not further explain or identify a specific instance in which the Director applied a standard of proof 
other than the preponderance of evidence in denying the petition. 
The Petitioner also argues that his proposed endeavor "is a vital aspect of U.S. dental operations and 
productivity" and that it is "national in scope, as [the Petitioner's] professional activities relate to a 
matter of national importance and impact, particularly because they generate substantial ripple effects 
upon key health activities on behalf of the United State." However, the Petitioner has not provided 
evidence to demonstrate that his work as a dentist, whether in the context of his own or someone else's 
dental practice, would result in an impact of regional or national importance or that he would operate 
on such a scale as to rise to the level of national importance. 
In addition, the Petitioner contends that the Director did not "give due regard" to his resume, business 
plan, letters of recommendation, or the industry reports that were previously submitted. However, as 
noted above, the Director specifically mentioned the Petitioner's business plan and recommendation 
letters, explaining how the evidence falls short of demonstrating the national importance of the 
proposed endeavor. Further, while the Petitioner stresses his credentials and work experience, which 
were also highlighted in his resume and the recommendation letters, such evidence addresses the 
Petitioner's knowledge, skills, education, and experience; these are considerations under Dhanasar's 
second prong, which "shifts the focus from the proposed endeavor to the foreign national." Matter of 
Dhanasar, 26 I&N Dec. at 890. Evidence of the Petitioner's credentials and experience in dentistry 
does not demonstrate the national importance of the proposed endeavor or establish that the impact of 
the endeavor would extend beyond the Petitioner's patients and prospective employers. In sum, the 
Petitioner primarily focuses on second prong factors that demonstrate his knowledge and experience. 
Lastly, although the Petitioner argues that he will have a dental practice that will "benefit the U.S. by 
creating jobs and economic stability," we note that a petitioner must establish eligibility based on the 
facts and circumstances that existed when the petition was filed. See 8 C.F.R. § 103.2(b)(l). A 
petitioner may not make material changes to a petition in an effort to make a deficient petition conform 
to USCIS requirements. See Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). As 
noted in the Director's denial, after having been issued an RFE where he was notified of various 
evidentiary deficiencies concerning his original endeavor to work as a dentist in U.S. dental clinics, 
the Petitioner materially altered that endeavor to include owning and operating a dental clinic. That 
said, however, the Petitioner offers no compelling arguments explaining how either his original or the 
altered endeavor's impact would attain the level of having first prong national importance. 
Accordingly, we adopt and affirm the Director's analysis and decision regarding the national 
importance of the Petitioner's endeavor. See Matter o_fBurbano, 20 I&N Dec. 872,874 (BIA 1994); 
3 
see also Giday v. INS, 113 F.3d 230, 234 (D.C. Cir. 1997) (noting that the practice of adopting and 
affirming the decision below has been "universally accepted by every other circuit that has squarely 
confronted the issue"); Chen v. INS, 87 F.3d 5, 8 (1st Cir. 1996) (joining eight circuit courts in holding 
that appellate adjudicators may adopt and affirm the decision below as long as they give 
"individualized consideration" to the case). As noted above, we reserve the Petitioner's appellate 
arguments regarding the two remaining Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. at 25. 
ORDER: The appeal is dismissed. 
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