remanded EB-2 NIW Case: Oral And Maxillofacial Surgery

U.S. Citizenship 
and Immigration 
Services 
In Re: 10145221 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : MAR . 30, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an oral and maxillofacial surgeon, 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, 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 petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will withdraw the 
Director's decision and remand the matter for further review of the record and issuance of a new 
decision. 
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) Aliens 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 alien'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 alien must have a United States 
doctorate or a foreign equivalent degree ( emphasis added). 
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 
Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a petitioner 
demonstrates: ( 1) that the foreign national' s proposed endeavor has both substantial merit and national 
importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) 
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 See also Poursina v. USC1S. No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
2 
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 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.4 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 
Petitioner's profession is dentist, orthodontist, and maxillofacial oral surgeon. 5 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 alien 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 "expert opinion letter" from I I senior evaluator at 
.__ __________________ ....,l who concludes that, based upon the Petitioner's 
academics and "approximately ten years and a month's work of practical experience and clinical 
application in oral and maxillofacial surgery and care, orthodontics, and related dental healthcare 
areas, [the Petitioner] is the equivalent of an Oral and Maxillofacial Surgeon with a Bachelor's Degree 
in Dentistry/Dental Surgery, and a Master's Degree in Oral and Maxillofacial Surgery, from an 
accredited institution of higher education in the United States." According to the evaluator: 
[T]he occupation of a 29-1022 Oral and Maxillofacial Surgeon is a specialist profession from 
the broad category of 29-1020 Dentists, because the position entails the application of a body 
of specialized technical knowledge in dentistry and orthodontics. The attainment of a degree 
in dentistry [i]s a minimum requirement for admission to learning and speciali[ z Jing in oral 
and maxillofacial care. To be qualified to reasonably perform the duties of an Oral and 
Maxillofacial Surgeon, the attainment of a bachelor's degree and passing the licensure exam 
for clinical practice in dentistry is the minimum requirement, followed by farther education 
and residency in orthodontic care and maxillofacial surgery. 
In response to the Director's request for evidence, the Petitioner provided an "Evaluation of Training, 
Education: and Experience" from I I, written byl l senior evaluator 
atj I who states that (note: emphasis in original): 
3 See Dhanasar, 26 T&N Dec. at 888-91, for elaboration on these three prongs. 
4 Although the Director's decision also determined that the Petitioner did not qualify as an individual of exceptional ability, 
and we agree, we note that the Petitioner's original filing was limited to her claim to be a member of the professions 
holding an advanced degree. 
5 In the initial filing, the Petitioner indicates that she (note: errors appear in original text) '"is petitioning for a second 
employment-based preference immigrant status (EB-2 National Interest Waiver, hereinafter 'NIW'), as an alien member 
of clinical field of oral and maxillofacial surgery." The Petitioner further states that "it is reasonable to conclude that [she] 
qualifies as an alien who is a member of the clinical field of oral and maxillofacial surgery holding an advanced degree." 
3 
Considering that a Bachelor 's Degree, followed by more than five years of full-time work 
experience in the field of Prosthetic Dentistry is equivalent to a Doctor of Dental Medicine , it 
is my expert opinion that [the Petitioner], with a Bachelor's Degree in Dental Surgery, a 
Specialization in Prosthetic Dentistry, and 13 years of qualifying experience , has no less than 
the equivalent of a Doctor of Dental Medicine ." 
Neither evaluator claims that the Petitioner' holds the foreign equivalent of a doctoral degree, nor do 
they 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)6: 
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 practi ce 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 
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 (MD.) degree ( emphasis added). 
For all of these reasons, the Petitioner has not demonstrated that she holds the foreign equivalent degree 
of a DDS or DMD degree, and therefore, 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). 
We would also 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 
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 demonstrate that the prospective 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 our nation. 
6 See https://www.bls.gov/ooh/healthcare/dentists.htm#tab-4 (last accessed Mar. 22, 2021). 
4 
For the reasons discussed above, we are remanding the petition for the Director to consider anew 
whether the Petitioner qualifies for EB-2 classification, the threshold determination in national interest 
waiver cases. The Director may request any additional evidence considered pertinent to the new 
determination. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for farther 
proceedings consistent with the foregoing analysis and entry of a new decision. 
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