remanded EB-2 NIW Case: Dental Prosthesis

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : WL. 17, 2023 In Re : 27440755 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a dental prosthesis technician , seeks classification as an individual 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 EB-2 
immigrant classification. See section 203(b )(2)(B)(i) of the Act. 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. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the proposed endeavor has national importance . 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 Christo 's, Inc. , 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review , 
we will withdraw the Director 's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
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. 
"Exceptional ability " means a degree of expertise significantly above that ordinarily encountered in 
the field. 8 C.F.R. § 204.5(k)(2). An individual must initially submit documentation that satisfies at 
least three of six categories of evidence. 8 C.F.R . § 204.5(k)(3)(ii)(A)-(F). Meeting at least three 
criteria , however , does not, in and of itself, establish eligibility for this classification . 1 If a petitioner 
does demonstrate meeting at least three criteria, USCIS then conducts a final merits determination to 
1 USCIS has previou sly confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability . See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy-manual. 
decide whether the evidence in its totality shows that the individual is recognized as having a degree 
of expertise significantly above that ordinarily encountered in the field. 
Once a petitioner demonstrates eligibility for the EB-2 classification, the petitioner must then establish 
eligibility for a discretionary waiver of the job offer requirement "in the national interest." Section 
203(b )(2)(B)(i) of the Act. While neither statute nor the pertinent regulations define the term "national 
interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for 
adjudicating national interest waiver petitions. Dhanasar states that USCIS may, as a matter of 
discretion, 2 grant a national interest waiver if the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
The Petitioner claims to qualify for EB-2 classification as an individual of exceptional ability. The 
Director concluded that the Petitioner established at least five of the six criteria related to establishing 
exceptional ability, those at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(E). 3 But the Director did not conduct a 
final merits determination and did not make a finding as to whether the Petitioner established that she 
is an individual of exceptional ability and thus eligible for EB-2 classification as a threshold issue for 
this category. 
We also note that as to the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(E), the Director did not discuss 
the evidence in the record and how the evidence establishes that the Petitioner meets each of the 
criteria. Instead, the Director only stated the conclusion that these criteria were established. However, 
we note the following issues with the evidence in the record in regarding some of these criteria. 
First, as to 8 C.F.R. § 204.5(k)(3)(ii)(D) (related to commanding a salary which demonstrates exceptional 
ability), the only evidence in the record related to this criterion are letters from dentists in Brazil who state 
they previously paid the Petitioner certain amounts per month during certain periods for dental prosthesis 
products. The Petitioner did not provide other supporting evidence to establish her income, such as W-
2s (or the foreign equivalent) or tax documentation.4 In the Petitioner's brief: the Petitioner provided 
URLs to several websites which she claims establish that these monthly payment amounts were 
significantly higher than the typical wages for the occupation in Brazil. However, the Petitioner did not 
provide documentary evidence related to this claim and did not provide a translation of the information 
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 The decision is unclear as to whether the Director intended to conclude that the Petitioner established the sixth criterion, 
8 C.F.R. § 204.5(k)(3)(ii)(F), because the Director stated both that "the submitted evidence does meet this criterion," and 
that "USCTS cannot conclude that the beneficiary meets this criterion." 
4 We note that this evidence was specifically requested by the Director in a request for evidence (RFE). Because the dentist 
letters appear to refer to paying the Petitioner not as an employee but as independent provider of dental products, the 
payment amounts referenced in the letters may reflect the gross income of the Petitioner's business, and not the Petitioner's 
personal income after business expenses. 
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contained on the websites, which are in Portuguese. 5 We also note that the Petitioner's brief contains a 
table in which the Petitioner adds up the monthly payment amounts received from each dentist and refers 
to this number as her "average monthly remuneration." But this number is not representative of her 
average monthly income, because the record shows that the Petitioner was only working with one dentist 
at a time and never received those payments concurrently in the same month. Based on this inflated 
number, the Petitioner then claims that she received in one month more than the typical technician would 
earn in a year. On remand the Director should consider, as an initial matter, whether the evidence is 
sufficient to establish the Petitioner's income during the relevant period. If so, the Director should next 
consider whether the Petitioner has established that this income demonstrates this individual criterion. 
For example, the Director can consider whether the evidence is sufficient to establish a typical wage 
amount for the occupation as a valid point of comparison and that the difference between the 
Petitioner's wages and the typical wages is attributable to the Petitioner's skill to determine if she 
meets this individual criterion. 6 
Additionally, as to 8 C.F.R. § 204.5(k)(3)(ii)(E) (related to membership in a professional association), 
the Petitioner provided a paid invoice from the National Association of Dental Laboratories (NADL) 
for membership dues and a printout of an email that provides the Petitioner's NADL "member 
number." The Petitioner states that NADL is "the unified voice of the dental laboratory industry" and 
states that it provides programs, services, and networking opportunities for dental laboratories. 
However, it is not clear from the record whether the membership relates to the Petitioner herself or to 
a laboratory business entity. Moreover, the record does not establish the requirements for membership 
with this association. On remand, the Director should consider whether the Petitioner has established 
that she herself is a member of this association and that it is a "professional association." See 8 C.F.R. 
§ 204.5(k)(2). 
Finally, as to 8 C.F.R. § 204.S(k)(ii)(F) (related to recogmt10n for achievements and significant 
contributions to the field), the Petitioner submitted three letters of recommendation from dentists who 
previously employed or partnered with the Petitioner. Each of the letters describes the typical amount 
of work that was expected per month of the Petitioner in terms of prosthesis, crowns, or other dental 
products and each speaks highly of the Petitioner's professionalism and skills as a technician. 
However, the letters do not describe achievements or significant contributions to the dental prosthesis 
field by the Petitioner, nor do they describe the Petitioner as receiving such recognition from 
governmental entities or professional organizations. As stated above, the decision is unclear as to 
whether the Director intended to conclude that the Petitioner established this criterion. On remand, 
the Director should make a clear finding as to this criterion considering the above. 
In sum, the Director should consider on remand whether the evidence in the record establishes at least 
three of the regulatory criteria related to exceptional ability and, if necessary, fully explain how the 
evidence in the record does or does not establish each criterion. If the evidence does establish at least 
three of the criteria, the Director should then conduct a final merits determination to decide whether 
5 Any document containing foreign language submitted to USCTS must be accompanied by a full English translation which 
the translator has certified as complete and accurate, and by the translator's certification that he or she is competent to 
translate from the foreign language into English. 8 C.F.R. § 103.2(6)(3). 
6 Conversely, the Director may want to ensure the difference is not attributable, for example, to differences in the number 
of hours worked, additional pay for overtime, fluctuations in currency and inflation, or other factors that may increase the 
Petitioner's earnings but would be unrelated to whether she demonstrates exceptional ability. 
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the evidence in its totality shows that the Petitioner is recognized as having a degree of expertise 
significantly above that ordinarily encountered in the field and would, as a result, meet the exceptional 
ability standard as a threshold issue prior to considering eligibility for a national interest waiver. 
As to the Petitioner's eligibility for a national interest waiver, the Director concluded that the Petitioner 
established the substantial merit of the proposed endeavor but not its national importance, and as such 
did not establish eligibility under the first prong of the Dhanasar framework. However, prior to the 
decision in this matter the Director stated in a request for evidence (RFE) that the record establishes 
both the substantial merit and national importance of the proposed endeavor. Because of this, the RFE 
requested additional evidence related to exceptional ability and to the second and third prongs of 
Dhanasar but did not request additional evidence to establish the first prong. The Director's decision 
did not analyze or make findings as to whether the Petitioner established eligibility under the second 
or third prongs, but then denied the matter instead on the Petitioner not establishing national 
importance. 
On appeal, the Petitioner points out this discrepancy between the conclusions in the RFE and the 
decision and the resulting "lack of clarity" as to what evidence is required for approval. We agree 
with the Petitioner that the Director's decision lacked sufficient clarity on this basis. The Petitioner 
was not afforded an opportunity to provide additional evidence to potentially establish national 
importance, if needed, prior to the Director's decision. Moreover, because the Director did not make 
a finding as to the Petitioner's eligibility for EB-2 classification or whether the Petitioner established 
prongs two and three of the Dhanasar framework, the decision rests entirely upon finding a deficiency 
that is contrary to what was stated in the RFE, and that the Petitioner did not previously have an 
opportunity to address. Therefore, we will withdraw the Director's decision. 
In addition to noting this discrepancy on appeal, the Petitioner also provides further arguments and 
briefing related to the potential national importance of the proposed endeavor. Where a petition is 
denied based on a deficiency of proof, and the petitioner was not put on notice of the deficiency with 
a reasonable opportunity to address it before the denial, then we will remand the matter to allow the 
Director to consider and address the new evidence or information. See Matter ofSoriano, 19 I&N Dec. 
764, 766 (BIA 1988). Therefore, we will remand the matter for the Director to consider the Petitioner's 
arguments in the first instance. In addition to considering the information presented on appeal, the 
Director may consider requesting additional evidence, particularly related to whether the Petitioner 
meets the exceptional ability standard and related to the first Dhanasar prong, if needed. On remand, 
the Director should review the entire record and consider whether the Petitioner has established EB-2 
eligibility and then eligibility under each of the three prongs of the Dhanasar framework. 
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III. CONCLUSION 
Accordingly, the matter will be remanded to the Director to determine if the Petitioner has established 
eligibility for the underlying classification, eligibility for a national interest waiver, and to enter a new 
decision. The Director may request any additional evidence considered pertinent to the new 
determination if needed. As such, we express no opinion regarding the ultimate resolution of this case 
on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
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