Good news — this case cleared the first bar
The AAO withdrew the Director's denial and remanded the case for further review. The AAO found that the Director failed to properly analyze whether the petitioner held a foreign equivalent doctoral degree, which is the correct threshold question for a dentist/oral surgeon claiming advanced degree status under EB-2.
The petitioner, an oral and maxillofacial surgeon, sought an EB-2 National Interest Waiver. The Texas Service Center Director denied the petition, finding the petitioner failed to show five years of progressive post-baccalaureate experience. The AAO found the Director applied the wrong standard: because dentistry customarily requires a doctoral degree (DDS/DMD), the regulation at 8 C.F.R. § 204.5(k)(2) does not permit substituting education plus experience — the petitioner must hold a foreign equivalent doctoral degree. The AAO withdrew the Director's decision and remanded for a proper analysis of whether the petitioner holds such a degree. The AAO also noted, without deciding, that the petitioner's NIW claim appeared weak on national importance grounds under Dhanasar.
What failed: The two expert evaluation letters failed because neither claimed the petitioner held the foreign equivalent of a doctoral degree (DDS/DMD); they only argued her bachelor's degree plus years of experience equaled a master's or doctoral level credential, which is legally insufficient for professions requiring a doctorate. The petitioner also failed to demonstrate national importance for her proposed endeavor under Dhanasar — her plans to practice oral surgery in the U.S. were not shown to impact the field broadly or benefit the national economy.
Takeaway: For EB-2 NIW petitions in fields where a doctoral degree is customarily required (such as dentistry or medicine), petitioners must show they hold a foreign equivalent doctoral degree — no amount of experience can substitute. Expert evaluators must directly address and confirm doctoral-level foreign equivalency, not merely equate experience to a master's degree.
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 two expert evaluation letters failed because neither claimed the petitioner held the foreign equivalent of a doctoral degree (DDS/DMD)
- they only argued her bachelor's degree plus years of experience equaled a master's or doctoral level credential, which is legally insufficient for professions requiring a doctorate
- The petitioner also failed to demonstrate national importance for her proposed endeavor under Dhanasar — her plans to practice oral surgery in the U.S
- were not shown to impact the field broadly or benefit the national economy.
Expert opinion letter concluding petitioner held the equivalent of a Master's Degree in Oral and Maxillofacial Surgery based on bachelor's degree plus experience — evaluator did not claim petitioner held foreign equivalent of a doctoral degree.
Evaluation of Training, Education, and Experience concluding petitioner's bachelor's degree plus 13 years of experience equated to a Doctor of Dental Medicine — does not satisfy the regulatory requirement for a foreign equivalent doctoral degree.
Petitioner's statements regarding her proposed endeavor were insufficient to demonstrate national importance under Dhanasar's first prong.
The Director analyzed whether the petitioner had five years of progressive post-baccalaureate experience, but failed to apply the correct regulatory standard: for specialties where a doctoral degree is customarily required (such as dentistry/oral surgery), a combination of education and experience cannot substitute — the petitioner must hold a foreign equivalent doctoral degree.
The Director did not properly address whether the petitioner held the foreign equivalent of a DDS or DMD degree under 8 C.F.R. § 204.5(k)(2).
Completed
I-140 filed
Oral and maxillofacial surgeon / dentist
Completed
Texas Service Center — Denied
Initial decision: Denied.
Completed
Appeal to the AAO
Petitioner appealed to the Administrative Appeals Office for de novo review.
2021-03-30
AAO decision — Remanded
The AAO withdrew the Director's denial and remanded the case for further review. The AAO found that the Director failed to properly analyze whether the petitioner held a foreign equivalent doctoral degree, which is the correct threshold question for a dentist/oral surgeon claiming advanced degree status under EB-2.
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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