dismissed EB-2 NIW Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: WLY 25, 2023 In Re: 25733801 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a healthcare professional in dentistry or the field of oral health, seeks classification as 
a member of the professions holding an advanced degree or of exceptional ability. See 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 EB-2 immigrant 
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 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). 
The Director of the Texas Service Center denied the petition, concluding that the record 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 l&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 petition 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 . Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
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 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 that 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, 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 
The Director concluded that the Petitioner's substantially meritorious proposed endeavor did not rise 
to a level of national importance as required by Dhanasar 's first prong. On appeal, the Petitioner 
contends that the Director did not evaluate all the submitted evidence under the preponderance of the 
evidence standard and instead imposed "novel substantive and evidentiary requirements beyond those 
set forth in the regulations." They state on appeal that the evidence they submitted in the record prior 
to and at appeal demonstrated that the Petitioner meets all three prongs under the Dhanasar framework 
and merits a discretionary waiver of the job offer, and thus the labor certification, in the national 
interest. But we agree with the Director's conclusion that the Petitioner has not sufficiently 
demonstrated the national importance of their proposed endeavor under the first prong ofDhanasar's 
analytical framework. 
A. The Petitioner's Due Process Claim 
On appeal, the Petitioner asserts that the Director's denial of their petition "deprived [them] of Due 
Process rights and fair treatment" because they were not given "the opportunity to present additional 
evidence and cure any questions raised by the adjudicating Officer." 
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The Petitioner did not identify any specific procedural irregularity that deprived them of notice and 
opportunity to be heard. The Director issued the Petitioner a notice of intent to deny (NOID) on April 
18, 2022. The NOID gave notice to the Petitioner and specified the deficiencies and concerns in the 
Petitioner's initial filing. It also provided the Petitioner a non-exhaustive list of documentation and 
material which they could submit to address the petition's deficiencies and an opportunity to provide 
it to USCIS. So it appears that USCIS followed the applicable regulations and procedure in 
adjudicating this petition. See 8 C.F.R. § 103.2(b)(8). 
And we have no authority to entertain constitutional due process challenges to lawful USCIS action. 
Cf Matter of Salazar-Regino, 23 I&N Dec. 223, 231 (BIA 2002). But even if we did have that 
authority, the parties must demonstrate a showing of"substantial prejudice" to prevail on a due process 
challenge. See De Zavala v. Ashcroft, 385 F.3d 879,883 (5th Cir. 2004). The Petitioner has not shown 
any violation of the regulations or process that resulted in "substantial prejudice." 
B. Substantial Merit and National Importance 
To satisfy the Dhanasar analytical framework's first prong, the Petitioner must demonstrate that their 
proposed endeavor has both substantial merit and national importance. This prong focuses on the 
specific endeavor that the individual 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 a proposed endeavor has national importance, we consider its potential 
prospective impact. In support of their claim that they can satisfy the Dhanasar analytical 
framework's first prong, the Petitioner provided articles from major media, professional, and industry 
publications that addressed the lack of affordable dental care and dental insurance in the United States, 
nationwide and regional labor shortages in the dental health profession, inequalities in the availability 
of dental care across different demographic populations, and serious health outcomes that can be 
linked to a lack of adequate dental care. The record here supports the Director's determination that 
the Petitioner's proposed endeavor, which aimed to develop the field of dentistry in the United States 
by addressing gaps in access to dental care in the United States and promoting general oral hygiene, 
had substantial merit. 
But, when evaluating national importance, we shift the focus from the importance of the field or 
industry within which a petitioner will work to "the specific endeavor that the foreign national 
proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. In Dhanasar, we farther 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. 
In Part 6 of the initial petition, the Petitioner described their endeavor as being a "healthcare 
professional in the field of dentistry" who would "conduct research dealing with the understanding of 
human diseases and the improvement of human health." But the Petitioner's "professional plan and 
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statement" did not indicate their intent to pursue any dental research. The Petitioner expressed their 
proposed endeavor in the initial petition as a healthcare professional (healthcare executive or 
healthcare administration) in the field of dentistry. In their response to the Director's NOID, they 
elaborated that they would "establish a dental clinic services firm" initially in one location in the State 
of Mississippi to "support hub-zones and economic depressed areas following the COVID-19 
pandemic crisis" and expanding to other locales in Mississippi and Arizona yearly thereafter. 
The evidence the Petitioner submitted does not sufficiently reflect by a preponderance of the evidence 
that the proposed endeavor rises to a level of national importance. The record contains documentation 
of a dearth of dental professionals. This shortage has led to the existence of many "dental deserts," or 
dental health professional shortage areas designated by the U.S. Department of Health and Human 
Services (HHS). At the outset, although the Petitioner provided several listings for commercial office 
space which could house a dental clinic, the record did not contain evidence that any, one, or all the 
listings were in shortage areas or areas designated as targeted due to high unemployment rates in the 
populations. The evidence did reflect that the listings described properties located in areas designated 
by the Small Business Administration as HUBZones. The HUBZone program's goal is to promote 
business growth in underutilized business zones with the goal of awarding 3% of federal contract 
dollars to companies that are HUBZone certified. Joining the HUBZone program makes a business 
eligible to compete for certain federal contracts in the "set-aside" category. There are several required 
qualifications to participate in the program, but the most dispositive requirement for purposes of our 
analysis is that the business seeking to participate in the HUBZone program must be at least 51 % 
owned by U.S. citizens, a community development corporation, an agricultural cooperative, an Alaska 
Native corporation, a Native Hawaiian organization, or an Indian tribe. Whilst it is unknown and the 
record is silent about what if any federal programs exist in the "set-aside" category for dental clinics, 
the record is crystal clear that the Petitioner would wholly own and control the proposed endeavor, 
and that the Petitioner is not a U.S. citizen, a community development corporation, an agricultural 
cooperative, an Alaska Native corporation, a Native Hawaiian organization, or an Indian tribe. So the 
fact that the properties the Petitioner was considering fell within the geographical reach of the 
HUB Zones program was wholly irrelevant to the question of whether the Petitioner's endeavor rose 
to a level of national importance. 
And it is unclear from the evidence in the record that the work of a single healthcare professional in 
the field of dentistry, irrespective of that proposed endeavor's success or failure, would have a 
significant impact on the field beyond its immediate sphere of influence. The evidence in the record 
does not highlight how the work of one professional could have broader implications that address the 
paucity of dental professionals that prompted HHS to designate individual geographical areas serving 
populations of individuals with limited access to dental care. And if in fact these shortages can be 
addressed by adding additional able, willing, qualified, and available international workers like the 
Petitioner, they would be better addressed through the U.S. Department of Labor's (DOL) labor 
certification process. The labor certification process permits U.S. employers to test the labor market 
to document the lack of able, available, qualified, and willing U.S. workers for positions with U.S. 
employers. 
The record also contains insufficient evidence to support the positive economic effects the Petitioner 
expects their proposed endeavor to realize. The Petitioner roots the potential positive effects of their 
unrealized clinic or clinics in multiple locations in their potential for job creation and tax revenue 
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generation. But the record contains insufficient documentation to support the Petitioner's projection 
that they would pay approximately $8,030,000 in wages to prospective future employees. The record 
is similarly silent about the other potential positive economic effects identified by the Petitioner, such 
as tax payments, which inhibits an evaluation of whether the Petitioner's indicated benefits from 
taxation rise to the level of national importance. 
The Petitioner also indicated in the record that their hiring and training plans would lead to knowledge 
proliferation in the field of dentistry. This dental knowledge proliferation is akin to teaching activities. 
In Dhanasar, we considered a petitioner's teaching activities and concluded that teaching activities do 
not rise to the level of having national importance because they do not impact a field of endeavor more 
broadly than the immediate effect or influence on the cohort receiving the teaching. See Dhanasar, 
26 I&N Dec. at 893. The record does not adequately support that the Petitioner's dental knowledge 
proliferation through their hiring and training plan will have a impact on the practice of dentistry in 
the United States. The record does not have a cognizable or detailed plan for reaching an audience 
wider than the individuals it will purportedly hire and train in the future. 
The manifest thrust of the Petitioner's claim of eligibility for the act of discretion to waive the 
requirement of a job offer, and thus a labor certification, in the national interest comes from the 
Petitioner's claims regarding their profession's importance, their past career as a dentist in their home 
country, and their dedication to their field. But these attributes, critical as they may be for an 
endeavor's success, are not germane to the question of whether a proposed endeavor elevates to a 
position of national importance. We are not concerned with the individual petitioner when evaluating 
the first prong of the Dhanasar analytical framework; we are focused on the petitioner's proposed 
endeavor. The success of the endeavor, or attributes that could tend to make the endeavor more 
successful, are consequently not as important as determining whether the proposed endeavor itself 
stripped away from a petitioner, has attributes that would highlight the prospective positive impact of 
its broader implications or positive economic effects rising to a level of national importance. 
B. Other Areas of Concern. 
Since the Petitioner did not demonstrate the national importance of their proposed endeavor, that issue 
standing alone requires the dismissal of their appeal. However, our review of the record uncovered 
additional issues that should be examined and addressed should there be future proceedings in this 
matter. 
The Petitioner initially proposed to continue working in their field as a healthcare professional in 
dentistry or the oral health field for U.S. dental offices. But the record developed initially contained 
evidence and documentation which demonstrated that the Petitioner's proposed endeavor was 
essentially a job search. And the purpose of an NIW is not to facilitate a petitioner's U.S. job search. 
As stated above, the Director's NOID solicited additional evidence and clarification of the Petitioner's 
proposed endeavor to determine whether it holds substantial merit and national importance. In 
response to the NOID, and perhaps having conceded that their initial endeavor could not support a 
national interest waiver under the Dhanasar framework, the Petitioner submitted a "Definitive 
Statement," a revised resume, and a new business plan outlining the Petitioner's plan to open their 
own network of dental offices. 
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A petitioner must establish eligibility for the benefit they are seeking at the time the petition is filed. 
See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). A petitioner may not make 
material changes to a petition to make a deficient petition conform to USCIS requirements. See Matter 
ofIzummi, 22 I&N Dec. 169, 176 (Assoc Comm'r 1998). Revisions submitted in response to an RFE 
constituting a materially different endeavor introduce ambiguity which prevents analysis into a 
proposed endeavor's substantial merit or national importance. So the Petitioner's extensive revisions 
raised serious questions about the true nature of the Petitioner's proposed endeavor. See also Matter 
of Ho, 19 I&N Dec. 582 at 591 ("Doubt cast on any aspect of the petitioner's proof may lead to a 
reevaluation of the reliability and sufficiency of the remaining evidence offered in support of the visa 
petition"). 
And we note the Petitioner's apparent ineligibility for classification as a member of the professions 
holding an advanced degree for implications related to any future filings. Specifically, the Petitioner's 
educational evaluation reflects that they have not earned the single source equivalent of a U.S. 
bachelor's degree or higher because their equivalency was determined after the combination of their 
education with their work experience. The regulation does provide an alternative pathway to 
demonstrating categorical eligibility as an advanced degree professional if a petitioner demonstrates 
they have earned the single source equivalent of a U.S. bachelor's degree followed by five years of 
progressively responsible work experience. Whilst the Petitioner has submitted evidence five years 
of work experience in the record, there is no evidence in the record of the Petitioner having earned the 
single source equivalent of a U.S. bachelor's degree or higher. And the record contained insufficient 
evidence to evaluate the Petitioner's eligibility for EB-2 classification as an individual of exceptional 
ability. 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 
As the Petitioner has not met the requisite first prong of the Dhanasar analytical framework, we 
conclude that they do not merit a favorable exercise of discretion to waive the requirement of a job 
offer, and therefore a labor certification. And we reserve the issue of whether the Petitioner 
demonstrated categorical eligibility for EB-2 classification as well as eligibility for a discretionary 
national interest waiver under the remaining prongs of the Dhanasar analytical framework. 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 ofL-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). So we dismiss the Petitioner's appeal. 
ORDER: The appeal is dismissed. 
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