dismissed EB-2 NIW Case: Dentistry

U.S. Citizenship 
and Immigration 
Services 
In Re: 22678735 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 27, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference 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 EB-2 classification. See 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 member of the professions holding an advanced degree or as an 
individual of exceptional ability, nor had she established that a waiver of the required job offer, and 
thus of the labor certification, would be in the national interest. On appeal, the Petitioner submits 
additional documentation and a brief asserting her eligibility for a national interest waiver. 
In these proceedings, it is the Applicant's burden to establish eligibility for the requested benefit by a 
preponderance of evidence. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 25 I&N 
Dec. 369, 376 (AAO 2010). Upon de nova 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 ( emphasis added), 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. 
Section 203 (b) of the Act sets out this sequential framework: 
(2) [Individuals] 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. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an [individual's] services in the sciences, arts, 
professions, or business be sought by an employer in the United States. 
Section 10l(a)(32) of the Act provides that "[t]he term 'profession' shall include but not be limited to 
architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, 
colleges, academics, or seminaries." 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of 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. If a doctoral 
degree is customarily required by the specialty, the [individual] must have a United 
States doctorate or a foreign equivalent degree ( emphasis added). 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) further provides six criteria, at least three of 
which must be satisfied, for an individual to establish exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. § 
204.5(k)(3)(ii). This, however, is only the first step, and the successful submission of evidence meeting at 
least three criteria does not, in and of itself, establish eligibility for this classification. If a petitioner 
satisfies these initial requirements, we then consider the entire record to determine whether the 
individual has a degree of expertise significantly above that ordinarily encountered. See Matter of 
Chawathe, 25 I&N Dec. at 376. See also 5 USCIS Policy Manual F.5, https://www.uscis.gov/policy­
manual/volume-6-part-f-chapter-5. 
Furthermore, while 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). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification (emphasis added), U.S. Citizenship and Immigration 
1 In announcing this new framework. we vacated our prior precedent decision, Matter of New York State Department of 
Transportation. 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a petitioner 
demonstrates: (1) that the individual's proposed endeavor has both substantial merit and national 
importance; (2) that the individual 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. 3 
II. ANALYSIS 
As a preliminary matter, the Petitioner alleges on appeal that the Director "did not apply the proper 
standard of proof in this case, instead imposing a stricter standard, and erroneously applied the law, 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. 4 Accordingly, the 
"preponderance of the evidence" is the standard of proof governing national interest waiver petitions. 5 
While the Petitioner asserts on appeal that she has provided evidence sufficient to demonstrate her 
eligibility for the immigration benefits sought, she 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. 
A. Material Change of Occupation and Proposed Endeavor 
Collectively considering the evidence in the record, we conclude that the Petitioner has materially 
changed the nature of the occupation in which she will be employed and the proposed endeavor that she 
intends to pursue, should this petition be approved. This is important because to show eligibility for the 
EB-2 classification as an advanced degreed professional, the Petitioner must demonstrate, among other 
things, that the occupation qualifies as a profession, and that she has five years of progressive post­
baccalaureate of experience within this occupation. To qualify for the EB-2 classification as an 
individual of exceptional ability, the Petitioner must submit evidence within the context of her 
profession or occupation to show that she satisfies at least three of six regulatory criteria to meet the 
initial evidence requirement, and ultimately to demonstrate that she has a degree of expertise 
significantly above that ordinarily encountered in her field. See Section 203(b )(2) of the Act, and 8 
C.F.R. § 204.5(k); See also 5 USCIS Policy Manual F.5, https://www.uscis.gov/policy­
manual/volume-6-part-f-chapter-5. 
Further, in order to demonstrate that the Petitioner is eligible for a national interest waiver she must, 
among other things, provide evidence sufficient to show that her specific proposed endeavor (1) it has 
both substantial merit and national importance and (2) the foreign national is well positioned to 
advance it under the Dhanasar analysis. 6 In Dhanasar, we held that a petitioner must identify "the 
specific endeavor that the foreign national proposes to undertake." Dhanasar at 889. 
2 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 See Matter of Chawathe, 25 T&N Dec. at 375 (AAO 201 O); see also Matter of Martinez, 21 T&N Dec. 1035, 1036 (BIA 
1997); Matter of Soo Hoo, 11 l&N Dec. 151, 152 (BIA 1965). 
5 See 1 USCIS Policy Manual, E.4(B), https://www.uscis.gov/policy-manual. 
6 See 5 USCIS Policy Manual F.5, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
3 
The Petitioner initially indicated that she was coming to the United States to be employed as a medical 
and health services manager in the field of dentistry, and that in this position she will "plan, direct, or 
coordinate medical and health services in hospitals, clinics, managed care organizations, [ and] public 
health agencies." She stated that she would "help U.S. dental clinics, public health agencies, public health 
agencies, or similar organizations improve their adminstrative effiency and quality of services," indicating 
that she intends to seek employment with an existing U.S. employer. Later, in reponse to the Director's 
request for evidence (RFE) she presented a revised statement and a business plan indicating that she will 
alternatively focus her endeavor on "developing and expanding my own business in the nation, I I 
I I 
In Part 7 of the appeal form the Petitioner states that she will be employed as a dentist, asserting that "her 
endeavor has the potential of broadly impacting as a Dentist General." Yet she also maintains in her 
December 2021 statement provided in support of the appeal that she will be employed as a medical and 
health services manager. Here, the Petitioner has presented inconsistent evidence regarding how she will 
be employed in the United States. First, she indicates that she will be employed as a medical and health 
services manager helping U.S. businesses to "improve their adminstrative efficiency and quality of 
services." Later, in the RFE response she asserts that she will focus her services as the manager of her 
own business. On appeal, she newly states that she will be employed as a dentist. The Petitioner must 
resolve these inconsistencies in the record with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
In response to an RFE or thereafter, the Petitioner cannot materially change aspects of the proffered 
position including the occupation in which she will be employed, and the nature of the proposed endeavor 
that she intends to pursue. The Petitioner must meet eligibility requirements at the time of filing the 
petition, but she has not done so here. 8 C.F.R. § 103.2(b)(l). For instance, the Petitioner's change 
of her occupation from manager to dentist after the filing date cannot retroactively establish eligibility. 
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 Izummi, 22 I&N Dec. 
169, 175 (Comm'r 1998); see also Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which 
requires that beneficiaries seeking employment-based immigrant classification must possess the 
necessary qualifications as of the filing date of the visa petition. For these reasons, the petition will 
remain denied. 
B. Advanced Degree Professional 
As noted above, the Director concluded that the Petitioner did not qualify for EB-2 classification as a 
member of the professions holding an advanced degree. Specifically, the Director raised concerns with 
the submitted employment letters and ultimately concluded that they did not establish that the Petitioner 
had at least five years of progressive post-baccalaureate experience. While we may agree with the 
Director's determination that the letters did not establish the progressive nature of her experience, the 
record indicates that the Petitioner intends to be employed as a dentist, which as we will explain is a 
profession that customarily requires a doctoral degree in the United States. 
As discussed, the Petitioner asserted that she will prospectively be employed as a dentist on the appeal 
form. She also states in her December 2021 letter submitted on appeal that she has "already completed 
the first and second phase of the U.S. Board of Dentistry, a very important step in validating my diploma 
4 
in the United States," which suggests that she intends to, but has yet to, obtain the requisite occupational 
credentials to practice as a dentist in the United States. 
We also observe that prior to the filing of the instant appeal in April 2022, the Petitioner filed a second 
Form I-140 national interest waiver petition (in December 2021).7 She states that she will be employed 
as a dentist in part 6 of the second petition, noting that in this position she will "examine, diagnose and 
treat diseases, injuries, and malformations of teeth and gums .... " In support of that petition, she provided 
a November 2021 statement in which she asserts that she "intend[s] to continue using my expertise and 
knowledge to work as a Dentist in the United States." We therefore conclude that the Petitioner intends 
to be prospectively employed as a dentist, not as a medical and health services manager - as alternatively 
asserted on appeal. 
As stated above, the definition at 8 C.F.R. § 204.5(k)(2) clearly states, in pertinent part, that "[i]f a 
doctoral degree is customarily required by the specialty, the [individual] must have a United States 
doctorate or a foreign equivalent degree." In other words, the regulation does not allow for a 
combination of education and experience if "a doctoral degree is customarily required by the 
specialty." 
The original filing includes an "Evaluation of Training, Education, and Experience" from I I kvritten by senior evaluator at I I who states: 
Considering that a Bachelor's Degree, followed by more than five years of full-time work 
experience in the field of Dentistry is equivalent to a Doctor of Dental Surgery, it is my 
expert opinion that [the Petitioner], with a Dental Surgery Degree, a Specialization in 
Restorative Dentistry, a Specialization in Implant Dentistry, and 23 years of experience, 
has no less than the equivalent of a Doctor of Dental Surgery." 
The evaluator does not claim that the Petitioner holds the foreign equivalent of a doctoral degree, nor 
does he address the information below. 
According to the "How to Become a Dentist" section of the Occupational Outlook Handbook ( OOH) 
entry for Dentists (SOC code 29-1020): 8 
Dentists must be licensed in the state in which they work. Licensure requirements vary by 
state, although candidates usually must have a Doctor of Dental Surgery (DDS) or Doctor 
of Medicine in Dentistry/Doctor of Dental Medicine (DMD) degree from an accredited 
dental program and pass written and clinical exams. Dentists who practice in a specialty 
area must complete postdoctoral training ( emphasis added). 
All dental specialties require dentists to complete additional training before practicing that 
specialty. This training is usually a 2- to 4-year residency in a CODA-accredited program 
7 See l which remains pending before USCIS as of October 27, 2022. 
8 See https://www.bls.gov/ooh/healthcare/dentists.htm#tab-4. 
5 
related to the specialty, which often culminates in a postdoctoral certificate or master's 
degree. Oral and maxillofacial surgery programs typically take 4 to 6 years and may result 
in candidates earning a joint Medical Doctor (M.D.) degree. 
For these reasons, the Petitioner has not demonstrated that she holds the foreign equivalent degree of a 
DDS or DMD degree and has not established that she is a member of the professions holding an advanced 
degree consistent with the regulatory definition at 8 C.F.R. § 204.5(k)(2). Therefore, she is ineligible 
for the EB-2 classification as a member of the professions holding an advanced degree. 
C. Individual of Exceptional Ability 
The Director concluded in the denial that the Petitioner did not satisfy the plain language requirements 
of at least three criteria at 8 C.F.R. § 204.5(k)(3)(ii). Specifically, the Director determined that the 
Petitioner fulfilled only the degree criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) and the membership in 
professional associations criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
When dismissing an appeal, we generally do not address issues that are not raised with specificity on 
appeal. Issues or claims that are not raised on appeal are deemed to be "waived." If the Petitioner 
fails to address a specific issue raised by the Director, and that issue is dispositive of the case, the 
appeal may be dismissed based on that "waived" issue. 9 On appeal, the Petitioner does not challenge 
the Director's determination that she does not meet any of the other regulatory criteria at 8 C.F.R. § 
204.5(k)(3)(ii). Therefore, we consider the issue of whether the Petitioner qualifies as an individual 
of exceptional ability waived. We will not disturb the Director's determination regarding the 
Petitioner's ineligibility for the EB-2 classification as an individual of exceptional ability. 
D. National Interest Waiver 
The remaining issue raised by the Petitioner on appeal is whether she has established her eligibility 
for a national interest waiver. As discussed, in order to qualify for a national interest waiver, the 
Petitioner must first show that she qualifies for the EB-2 classification as either an advanced degree 
professional or an individual of exceptional ability. 203(b )(2)(A) of the Act. As the Petitioner has not 
established eligibility for the underlying immigrant classification, the issue of the national interest 
waiver is moot. 10 
Nonetheless, we note that regarding the Petitioner's remaining claims of eligibility under the Dhanasar 
analysis, we agree with the Director's ultimate conclusions. For example, regarding the national 
9 See, e.g., Matter of M-A-S-, 24 l&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). 
10 It is unnecessary and would be an unwise use of the government's time and resources to analyze the remaining 
independent grounds when another is dispositive of the appeal. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding 
it unnecessary to analyze additional grounds when another independent issue is dispositive of the appeal); see also Matter 
of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is 
otherwise ineligible). 
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importance portion of the first prong , although the Petitioner's statements reflect her intention to 
continue working in her field in the United States, she has not offered sufficient information and 
evidence to demon strate that the prospecti ve impact of her proposed endeavor rises to the level of 
national importance. In Dhanasar, we determined that the petitioner's teaching activities did not rise 
to the level of having national importance because they would not impact his field more broadly. Id. 
at 893. Similarly , the record in this matter does not demonstrate that the Petitioner's proposed 
endeavor stands to sufficiently impact U.S. interests or the dental industry more broadly at a level 
commensurate with national importance . In addition , she has not demonstrated that her specific 
proposed endeavor has significant potential to employ U.S. workers or otherwise offer substantial 
positive economic effects for the United States. 
III. CONCLUSION 
The Petitioner has not established that she satisfies the regulatory requirements for the EB-2 
classification as an advanced degree professional or as an individual of exceptional ability. The 
appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. 
ORDER: The appeal is dismissed. 
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