dismissed EB-2 NIW Case: Aerospace Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 20243138 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 1, 2021 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an aerospace engineer, 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 Nebraska Service Center denied the petition, concluding that the Petitioner had 
not established that a waiver of the required job offer, and thus of the labor certification, would be in 
the national interest. We dismissed the subsequent appeal, agreeing that the Petitioner met the first 
prong of the analytical framework described in the precedent decision Matter of Dhanasar, 26 I&N 
Dec. 884 (AAO 2016), but had not sufficiently established that he is well positioned to advance the 
proposed endeavor under the second prong. Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 1, grant a national interest waiver if the 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) 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. 2 
The matter is before us again on a motion to reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motion. 
I. LAW 
By regulation, the scope of a motion is limited to "the prior decision ." 8 C.F.R. § 103 .5(a)(l)(i). The 
filing before us is not a motion to reconsider the denial of the petition . Instead, it is a motion to 
reconsiderourmostrecentdecision. In other words, we examine any new arguments to the extent that 
they pertain to our prior dismissal of the Petitioner's motion to reopen. Therefore , we cannot consider 
1 See also Poursina v. USCJS, No . 17-16579 , 2019 WL 4051593 (Aug. 28 , 2019) (findingUSCIS' decision to grant or 
deny a nationalinterestwaiverto be discretionary in nature). 
2 SeeDhanasar , 26l&NDec. at 888-91, for elaboration on these three prongs. 
new objections to the earlier denial, and the Petitioner cannot use the present filing to make new 
allegations of error at prior stages of the proceeding. 
A motion to reconsider must state the reasons for reconsideration and be supp01ied by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or 
USCIS policy. 8 C.F.R. § 103 .5(a)(3). The Board oflmmigration Appeals (BIA) generally provides 
that a motion to reconsider asserts that at the time of the previous decision, an error was made. It 
questions the decision for alleged errors in appraising the facts and the law. The very nature of a 
motion to reconsider is that the original decision was defective in some regard. See Matter of Cerna, 
20 I&N Dec. 399,402 (BIA 1991). 
II. ANALYSIS 
At the time of filing, the Petitioner was working paii-time as a graduate research assistant while pursuing 
hisPh.D.inl !engineering. Heproposesto"workinl • 1 I 
.___...,.....'-' -'-'a_n_;_;d_",_._-rimarily claims eligibility under Dhanasar's second prong based on his graduate work 
with~-~ and I 1"3 
As an initial matter, we note that contrary to the Petitioner's assertion that "Dhanasar merely states 
that the Petitioner will be determined to be well positioned if he has made any progress toward 
achieving the proposed endeavor," we explained in our precedent decision that: 
To determine whether he or she is well positioned to advance the proposed endeavor, we 
consider factors including, but not limited to: the individual's education, skills, knowledge and 
record of success in related or similar eff 01is; a model or plan for future activities; any progress 
towards achieving the proposed endeavor; and the interest of potential customers, users, 
investors, or other relevant entities or individuals. 
In other words, a petitioner's "progress towards achieving the proposed endeavor" is only one of the 
factors we consider. 
The Petitioner also claims that "[i]t is stretching the plain reading of Dhanasar to expect eve1y 
petitioner to have personally secured funding in his/her own name." However, we did not indicate 
any such expectation for "every petitioner." Rather, we informed the Petitioner that, despite claims 
to the contrary, the funding information he submitted as evidence that he is well positioned to advance 
his endeavor did not establish that he, as opposed to the head of his laboratory for example, was mainly 
responsible for obtaining, or essential or critical to receiving, the referenced funding. As we explained 
in Dhanasar, "the significance of the petitioner's research in his field is corroborated by evidence of 
peer and government interest in his research, as well as by consistent governmentfitnding of the 
petitioner's research projects," noting that "the record establishes that the petitioner initiated or is the 
primary award contact on severalfitnded grant proposals and that he is the only listed researcher on 
many of the grants." (Emphasis added). 
~-------------------------- is a consortium otl._ _ __.l servicing 
compames. 
2 
Research must add information to the pool of knowledge in some way in order to be accepted for 
publication, presentation, funding, or academic credit. However, not every individual who has 
performed original research will be found to be well positioned to advance his proposed endeavor. 
Rather, we examine the factors set forth in Dhanasar to determine whether, for instance, the 
individual's progress towards achieving the goals of the proposedresearch, record of success in similar 
efforts, or generation of interest among relevant paiiies supp01is such a finding. Id. at 890. In 
Dhanasar, we concluded that "[t]he petitioner's education, experience, and expertise in his field, the 
significance of his role in research projects, as well as the sustained interest of and funding from 
government entities such as NASA and AFRL, position him well to continue to advance his proposed 
endeavor of hypersonic technology research." Id. at 893. 
The Petitioner also asserts that he has met the preponderance of the evidence standard, 4 but fails to 
establish that we improperly considered the evidence under a higher or incorrect standard. 
Upon review, we affirm that our prior decision considered the submitted evidence, including the 
reference letters, 5 properly applied Dhanasar, and that it was correct, based on the evidence in the 
record at the time of the decision, under the preponderance of evidence standard. 
In summation, the Petitioner has not established on motion that our decision was based on an incorrect 
application of law or policy. Because we limited our appeal decision to an analysis of the second 
Dhanasar prong, and because our conclusion on that issue is dispositive, we need not address the 
Petitioner's assertions on motion regarding the third prong of the Dhanasar framework. 
III. CONCLUSION 
We affirm our prior conclusion that the Petitioner has not established eligibility for, or otherwise 
merits, a national interest waiver as a matter of discretion. 
ORDER: The motion to reconsider is dismissed. 
4 SeeMatterofChawathe,25 I&NDec. 369, 376(BIA20IO)andMatterofE-M-,20 I&NDec. 77 (BIA 1989), 
5 While the Petitioner may disagree with our conclusions regarding the submitted reference letters, he has not established 
that we did not give them proper consideration. 
3