Case Study: Appeal Dismissed on a NIW Petition of an Alien Dentist

by Victoria Chen, Esq., J.D.

Background: The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), as a member of the professions holding an advanced degree. The petitioner seeks employment as a dentist. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the national interest of the United States.

Evidence: The record shows that the petitioner is a self-employed dentist. Counsel states that the petitioner is: …one of the busiest dentists in the profession providing dental services to paying and non-paying patients. Members of the Filipino and Hispanic community feel comfortable and at ease coming to him for dental care. He also provides dental care to everyone in the community who is under the DENTI-CAL program (the equivalent of MEDI-CAL program). His Filipino and Hispanic patients would not have the same comfort and ease of communication if they were to go to another dentist…He is the only dental practitioner in his area city – that provides treatment to DENTI-CAL patients. He is also the only dentist in his area who provides treatment to SART (Sub-acute Residential Treatment) patients. This is a combination private/non-private agency which creates public awareness on mental health, provides temporary housing and medical and dental treatment to emotionally and mentally disturbed individuals. There are very few dentists in the United States willing to do this kind of work for these unfortunate individuals. He is also the only dentist in his area involved in the Headstart Dental Care Program – which provides dental treatment to 3 to 5 year old children enrolled in the Headstart program. The record contains the petitioner’s license to practice dentistry in the State of his practice the petitioner’s 1993 and 1994 income tax returns, evidence of membership in several Professional organizations. Also in the record is evidence that the petitioner has been renumerated for his services as a Denti-Cal provider.

USCIS Decision:The director found that the petitioner qualifies for classification as a member of the professions holding an advanced degree, but that the petitioner had not established that an exemption from the requirement of a job offer would be in the national interest of the United States.

AAO’s Decision: The AAO stated that does not appear to have been the intent of Congress to grant national interest waivers on the basis of the overall importance of a given profession, rather than on the merits of the individual alien. On the basis of the evidence submitted, the beneficiary has not established that a waiver of the requirement of an approved labor certification will be in the national interest of the United States. And therefore the AAO dismissed the appeal.

from Chen Immigration Law Associates

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