This appeal was not successful at this stage
The AAO dismissed the appeal because the petitioner failed to meet at least three of the six EB-2 exceptional ability criteria, making her ineligible for the underlying EB-2 classification. Because she could not establish the foundational EB-2 qualification, the national interest waiver question was not reached.
A dentist filed an I-140 petition seeking EB-2 classification as an individual of exceptional ability with a national interest waiver. The Texas Service Center Director denied the petition, finding the petitioner met only the academic record criterion of the six required. On appeal, the AAO affirmed the denial, finding that pre-filing dental work experience totaled far less than the ten years required under one criterion, and that the petitioner waived three other criteria by failing to address them specifically in the appeal brief. The AAO also noted concerns about counsel's credibility due to repeated use of incorrect pronouns for the petitioner. Because the petitioner could not clear the foundational EB-2 exceptional ability threshold, the national interest waiver analysis was not reached.
What failed: 1. The petitioner failed to demonstrate ten years of full-time pre-filing experience as a dentist — her actual qualifying experience was less than two years combined. 2. The appeal brief failed to specifically argue the license/certification, exceptional salary, and professional membership criteria, causing them to be deemed waived. 3. The appeal contained only general, unsupported assertions that the Director imposed improper standards, without identifying specific errors, which undermined the appeal's persuasiveness.
Takeaway: When appealing a denial, petitioners and counsel must specifically address each criterion the Director rejected, with detailed argument and evidence — vague assertions are insufficient and unaddressed issues will be deemed waived. Counsel should also ensure the appeal brief accurately describes the petitioner to preserve credibility.
Cases like this are frequently used by attorneys when responding to RFEs or building initial petitions. The evidence patterns that worked (or failed) here directly reflect what USCIS officers look for when evaluating EB-2-NIW criteria.
● Evidence that moved the needle
- See summary above for details.
● Evidence that wasn't enough alone
- The petitioner failed to demonstrate ten years of full-time pre-filing experience as a dentist — her actual qualifying experience was less than two years combined
- The appeal brief failed to specifically argue the license/certification, exceptional salary, and professional membership criteria, causing them to be deemed waived
- The appeal contained only general, unsupported assertions that the Director imposed improper standards, without identifying specific errors, which undermined the appeal's persuasiveness.
Academic record documentation satisfying 8 C.F.R. § 204.5(k)(3)(ii)(A)
Employer letters did not establish ten years of full-time experience as a dentist prior to the October 2020 filing date; petitioner's actual pre-filing dentistry experience was approximately six months as a general dentist, thirteen months as a dental assistant, and four months part-time as a dental hygienist
Post-filing U.S. employment as a dentist was not considered because eligibility is assessed at the time of filing
License/certification criterion (8 C.F.R. § 204.5(k)(3)(ii)(C)) was deemed waived because petitioner failed to address it with specificity on appeal
Exceptional salary criterion (8 C.F.R. § 204.5(k)(3)(ii)(D)) was deemed waived because petitioner failed to address it with specificity on appeal
Professional association membership criterion (8 C.F.R. § 204.5(k)(3)(ii)(E)) was deemed waived because petitioner failed to address it with specificity on appeal
Counsel's repeated use of incorrect pronouns for the petitioner raised credibility concerns about the accuracy of assertions on appeal
No specific legal errors were found in the Director's decision; the AAO affirmed the Director's findings and dismissed the appeal.
Completed
I-140 filed
General dentist seeking to practice dentistry in the United States
Completed
Director — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2023-07-17
AAO decision — Dismissed
The AAO dismissed the appeal because the petitioner failed to meet at least three of the six EB-2 exceptional ability criteria, making her ineligible for the underlying EB-2 classification. Because she could not establish the foundational EB-2 qualification, the national interest waiver question was not reached.
If you're appealing a similar decision, I-290B must be filed within 30 days of personal service of the denial, or 33 days if mailed.
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