dismissed EB-2 Case: Sales Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 6, 2023 In Re: 28451679 
Motions on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition 
for Alien Workers (Advanced Degree) 
The Petitioner, an electronics manufacturer's representative, seeks to permanently employ the 
Beneficiary as a sales engineer. The company requests his classification under the employment-based, 
second-preference (EB-2) immigrant visa category as a member of the professions holding an 
"advanced degree" or its equivalent. See Immigration and Nationality Act (the Act) section 
203(b )(2)(A), 8 U.S .C. § 1153(b )(2)(A). U.S. businesses may sponsor noncitizens for permanent 
residence in this category to work in jobs requiring at least bachelor's degrees followed by five years 
of progressive experience in applicable specialties. See 8 C.F.R. § 204.5(k)(2) ( defining the term 
"advanced degree") . 
The Director of the Nebraska Service Center denied the petition, and we dismissed the Petitioner's 
following appeal and combined motions to reopen and reconsider. See In Re: 24834421 (AAO Feb. 
7, 2023). We affumed the Director's conclusion that the accompanying certification from the U.S. 
Department of Labor does not demonstrate the offered job's need for an advanced degree professional. 
We also found that, contrary to regulations, the labor certification is not an original certification signed 
by the Beneficiary . 
The matter returns to us on another round of combined motions to reopen and reconsider. The 
Petitioner bears the burden of demonstrating eligibility for the requested benefit by a preponderance 
of the evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will 
dismiss the motions . 
I. LAW 
A motion to reopen must state new facts, supported by documentary evidence. 8 
C.F.R. § 103.5(a)(2). 
In contrast, a motion to reconsider must demonstrate that our prior decision misapplied law or U.S. 
Citizenship and Immigration Services (USCIS) policy based on the record at the time of the decision . 
8 C.F.R. § 103.5(a)(3). On motion, we can only review our latest decision. 8 C.F.R. § 103.5(a)(l)(ii) . 
We may grant motions that meet these requirements and demonstrate eligibility for the requested 
benefit. See Matter ofCoelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring new evidence to have the 
potential to change a case's outcome) . 
A. Motion to Reopen 
The Petitioner's motion to reopen lacks an original labor certification signed by the Beneficiary or 
other new evidence. See 20 C.F.R. § 656.17(a)(l) (stating that USCIS "will not process petitions 
unless they are supported by an original certified ETA Form 9089 that has been signed by the 
employer, alien, attorney and/or agent"). Thus, contrary to 8 C.F.R. § 103.5(a)(2), the motion does 
not state "new facts." Because the motion does not meet applicable requirements, we must dismiss it. 
8 C.F.R. § 103.5(a)(4). 
B. Motion to Reconsider 
The Petitioner asserts that USCIS found the Beneficiary eligible as an advanced degree professional. 
The company contends that the "remaining issue" is whether he qualifies for a waiver of the EB-2 
category's job-offer requirement and thus of a labor certification. 
Contrary to the Petitioner's contentions, however, neither we nor the Director made a finding 
regarding the Beneficiary's qualifications as an advanced degree professional. See, e.g., In Re: 
22146834, *3 n.3 (AAO July 28, 2022) ("We make no finding concerning the Beneficiary's 
qualifications.") Rather, both we and the Director found that the company's labor certification does 
not demonstrate the offered job's need for an advanced degree professional. See 8 C.F.R. 
§ 204.5(k)(l) ("The job offer portion of the individual labor certification ... must demonstrate that 
the job requires a professional holding an advanced degree or the equivalent.") Even if the Beneficiary 
qualifies as an advanced degree professional, the petition cannot be approved because the job-offer 
portion of the labor certification does not require an advanced degree professional. 
Also, the company's contentions refer to a national interest waiver. See section 203(b )(2)(B)(i) of the 
Act. As explained in our prior decision, the Petitioner marked box 1.d. in Part 2 of its Form I-140, 
Immigrant Petition for Alien Worker, indicating its request for the Beneficiary's classification as "[a] 
member of the professions holding an advanced degree ... (who is NOT seeking a National Interest 
Waiver (NIW)." ( emphasis in original). If the company sought a national interest waiver, it should 
have marked box 1.h. in Part 2 of its Form I-140 as "[a]n alien applying for an NIW." 
Because USCIS has already decided the petition under the marked visa category, we cannot now 
consider a request to change the classification. See USCIS, "Petition Filing and Processing 
Procedures for Form I-140," https://www.uscis.gov/forms/all-forms/petition-filing-and-processing­
procedures- for-form-i-140-immigrant-petition- for-alien-workers ("We cannot change the visa 
category if we have already made a decision on your Form I-140.") We therefore will not consider 
the Beneficiary's eligibility for a national interest waiver. 
The Petitioner's remaining arguments reflect continued confusion about the requested immigrant visa 
category and the scope of these proceedings. The company contends that the Beneficiary's bachelor's 
degree and employment experience demonstrate that he is "well-positioned" to advance his proposed 
endeavor. But his positioning to advance a proposed endeavor is a requirement for a national interest 
waiver. See Matter ofDhanasar, 26 I&N Dec. 884, 890 (AAO 2016). As previously explained, the 
Petitioner did not request a national interest waiver on its Form 1-140, and USCIS policy prevents us 
from changing the classification after a decision's issuance. 
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The Petitioner also argues that it has the ability to pay the offered job's proffered wage. But, although 
petitioners must demonstrate their abilities to pay proffered wages under 8 C.F.R. § 204.5(g)(2), 
neither we nor the Director faulted the company's filing on that basis. The Petitioner's ability to pay 
the proffered wage is therefore irrelevant in these appellate proceedings. 
III. CONCLUSION 
The motion to reopen omits a required original labor certification signed by the Beneficiary and does 
not otherwise meet applicable requirements. The motion to reconsider does not demonstrate our 
misapplication of law or policy. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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