dismissed EB-2 NIW Case: Aerospace Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date : AUG . 24, 2023 In Re: 22046022 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks classification as a member of the professions holding an advanced degree. See 
Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S .C. § 1153(b)(2) . The Petitioner 
also seeks a national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1153(b )(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition . Although the record establishes that the 
Petitioner qualifies for classification as a member of the professions holding an advanced degree, in 
relevant part the Director concluded that the record does not establish that the proposed endeavor has 
national importance . We dismissed a subsequent appeal. The matter is now before us on combined 
motions to reopen and reconsider. 1 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec . 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motions. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence . 8 C.F.R . 
§ 103.5(a)(2). A motion to reconsider must establish that our prior decision was based on an incorrect 
application oflaw or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision . 8 C.F.R. § 103.5(a)(3) . Our review on motion is limited to 
reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii) . We may grant motions that satisfy these 
1 After the appeal decision, the Petitioner submitted two additiona l Forms I-290B, Notice of Appea l or Motion , indicating 
that the subsequent filings each were appeals. However, the submissions clarified that the Petitioner intended the 
subsequent filings to be combined motions to reopen and motions to reconsider. After filing the additional Forms I-290B, 
the Petitioner further clarified that the most recent submission is a duplicate and he requested that we " consolidate the 
filings and adjudge accordingly ." Therefore , we address the merits of the submissions herein and we will dismiss the most 
recent submissionJ !as moot. 
requirements and demonstrate eligibility for the requested benefit. See Matter o_fCoelho, 20 I&N Dec. 
464, 4 73 (BIA 1992) (requiring that new evidence have the potential to change the outcome). 
II. ANALYSIS 
As noted above, the Petitioner submits combined motions to reopen and motion to reconsider. We 
will address the respective motions separately below. 
A. Motion to Reopen 
Initially, the Petitioner described the proposed endeavor as a plan "to continue his work on conducting 
external configuration analysis for aircraft engines." On the Form I-140, Immigrant Petition for Alien 
Workers, the Petitioner farther described the proposed endeavor as working on "external configuration 
analysis for aircraft engines, life analysis for aircraft engine cold section and structural analysis for air 
craft mounting system and lubrication system [sic]." 
In response to the Director's notice of intent to deny (NOID), the Petitioner materially changed his 
description of the ro osed endeavor. The Petitioner stated, instead, "I found a new employment 
position at the .. [,] a subsidiary of,__ _____ __, which also 
incorporates~ ____ __. where I was working [] at the time of my application." The Petitioner 
farther asserted in response to the NOID, "I am working now in the field of nuclear reactors." 
However, the Petitioner added, "I intend to continue to advance my knowledge on the FEA/CAE 
technology for aircraft engine external configuration and to expand this analysis for applications in 
the seismic and dynamic analysis of nuclear reactors/structures a ~------------' 
A petitioner must establish eligibility for the benefit it is seeking at the time the petition is filed. See 
8 C.F.R. § 103.2(b)(l). A visa petition may not be approved based on speculation offature eligibility 
or after a petitioner becomes eligible under a new set of facts. See Matter o_f Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). A petitioner may not make material changes to a petition in an 
effort to make a deficient petition conform to USCIS requirements. See Matter oflzummi, 22 I&N 
Dec. 169, 176 (Assoc. Comm'r 1998). 
As we explained in our prior decision, and as the Director explained in the decision, because the 
Petitioner's initial description of the proposed endeavor at the time of filing omitted any reference to 
"working ... in the field of nuclear reactors," and because the field in which the Petitioner would work 
is material to the nature of the proposed endeavor and whether it may have national importance, the 
Petitioner's assertion in response to the Director's NOID that he "found a new employment position 
at the I I' and that his endeavor would entail "working ... in the field of 
nuclear reactors," rather than being limited to "conducting external configuration analysis for aircraft 
engines," the Petitioner materially changed his description of the proposed endeavor. See 8 C.F.R. 
§ 103.2(b)(l); see also Matter o_fKatigbak, 14 I&N Dec. at 49; Matter oflzwnmi, 22 I&N Dec. at 176; 
Matter ofDhanasar, 26 I&N Dec. 884, 888-91 (AAO 2016). Because the Petitioner's references to 
the field of nuclear reactors materially changed the description of the proposed endeavor, they cannot 
establish eligibility and we need not discuss them farther. See id. 
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We further noted in our prior decision that, in addition to the Petitioner stating in response to the 
Director's NOID that he would divide his time among both "technology for aircraft engine external 
configuration and ... applications in the seismic and dynamic analysis of nuclear reactors/structures," 
the record does not establish how much time he would devote to the proposed endeavor as described 
at the time of filing, "conducting external configuration analysis for aircraft engines." We explained 
that, because the record does not establish how much time-if any-the Petitioner would devote to 
the proposed endeavor as described at the time of filing, in addition to other deficiencies in the record, 
the record does not establish that some portion of the Petitioner's time spent on such analysis would 
have national importance, as required by the first Dhanasar prong. See Dhanasar, 26 I&N Dec. at 
888-91, for elaboration on these three prongs. 
More specifically, in determining national importance, the relevant question is not the importance of 
the industry, field, or profession in which an individual will work; instead, to assess national 
importance, we focus on the "specific endeavor that the [noncitizen] proposes to undertake." See 
Dhanasar, 26 I&N Dec. at 889. Dhanasar provided examples of endeavors that may have national 
importance, as required by the first prong, having "national or even global implications within a 
particular field, such as those resulting from certain improved manufacturing processes or medical 
advances" and endeavors that have broader implications, such as "significant potential to employ U.S. 
workers or has other substantial positive economic effects, particularly in an economically depressed 
area." Id. at 889-90. 
On motion to reopen, the Petitioner asserts that "[t]he Director incorrectly applied the standard set 
forth in Dhanasar in adjudicating [ the Petitioner's] eligibility for a national interest waiver" by failing 
"to properly evaluate the national importance of his work and erroneously determin[ing] that [his] 
endeavor had changed." The Petitioner further asserts on motion, "It is plainly apparent that [the 
Petitioner's] proposed endeavor has not changed, rather his application of the proposed endeavor can 
be applied to multidisciplinary areas." The Petitioner submits the following new evidence on motion 
to reopen: a letter from the Petitioner's manager, and various documents pertaining to nuclear reactors 
and nuclear energy. 
As discussed above, because the proposed endeavor, as described at the time of filing, omitted any 
reference to "working ... in the field of nuclear reactors," and because the field in which the Petitioner 
would work is material to the nature of the proposed endeavor and whether it may have national 
importance, the Petitioner's subsequent references to the field of nuclear reactors and nuclear energy 
materially change the proposed endeavor and, therefore, cannot establish eligibility and we need not 
address them further. See 8 C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 14 I&N Dec. at 49; 
Matter ofIzummi, 22 I&N Dec. at 176; Dhanasar, 26 I&N Dec. at 888-91. Accordingly, we need not 
address the various documents pertaining to nuclear reactors and nuclear energy the Petitioner submits 
on motion. 
The letter from the Petitioner's manager asserts that his "background with jet engines is critical to his 
current work with nuclear reactors" because Dis taking the world's largest jet engine and turning 
it into a power plant." The letter further informs that I I is the primary design firm for 
approximately 1/3 of the operating nuclear power plants in the United States" and it discusses how 
developing nuclear energy may have national importance. However, as discussed above, because the 
proposed endeavor, as described at the time of filing, omitted any reference to "working ... in the 
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field of nuclear reactors," we need not address the letter's references to nuclear power plants and 
nuclear energy because it cannot establish eligibility. See id. We note that the letter asserts that the 
Petitioner's "previous experience [was] of the utmost importance to the United States, as well as its 
critical ally in the Pacific region, South Korea" and that it is "directly related to his current endeavor 
at I I' However, the letter does not elaborate on how the prospective, proposed endeavor of 
"conducting external configuration analysis for aircraft engines," as described at the time of filing, 
may have "national or even global implications within a particular field, such as those resulting from 
certain improved manufacturing processes or medical advances" or broader implications, such as 
"significant potential to employ U.S. workers or has other substantial positive economic effects, 
particularly in an economically depressed area." See Dhanasar, 26 I&N Dec. at. at 889-90. 
References to the Petitioner's "previous experience" and generalized assertions regarding his previous 
experience's relationship to his current work-notably pertaining to nuclear reactors and nuclear 
energy and, thus, outside the scope of the endeavor as described at the time of filing-do not articulate 
how the prospective, proposed endeavor of "conducting external configuration analysis for aircraft 
engines" may have national importance. In summation, neither the various documents pertaining to 
nuclear reactors and nuclear energy nor the letter from the Petitioner's manager submitted on motion 
to reopen establish how we may have erred in our conclusion that the record does not establish that 
the proposed endeavor, as described at the time of filing the petition, may have national importance. 
B. Motion to Reconsider 
On motion to reconsider, the Petitioner asserts that "[t]he exacting documentation being demanded is 
not for evidence that would tend to show that [the Petitioner] 'more likely than not satisfies the 
qualifying elements,' but rather shows that the Service is holding [the Petitioner] to what is akin to a 
clear and convincing or even beyond the reasonable standard [sic]," citing Matter of Chawathe, 
25 I&N Dec. at 376. The only other law or policy the Petitioner references on motion to reconsider, 
as it may relate to our analysis of the Dhanasar criteria, is Dhanasar itself. More specifically, the 
Petitioner asserts that "the Service" in general "impermissibly imposes a higher burden of proof well 
beyond the preponderance of evidence standard" regarding "website printouts froml Ifthat] 
did not include the exact type of engine named in the ~------~letter; ... which nuclear 
reactors or fuels the Petitioner 'would specifically be working on'; and [the omission of] contracts 
betweenOand a U.S. public or private institution"' in the record. 
We first note that, to the extent the Petitioner references the Director's comments prior to our decision 
on the appeal, those issues are outside the scope of review for a motion to reconsider, which is limited 
to whether the appeal decision was based on an incorrect application of law or policy. 8 C.F.R. 
§ 103.5(a)(l)(ii); see also 8 C.F.R. § 103.5(a)(3). 
As discussed above, the Petitioner materially changed his description of the proposed endeavor from 
"conducting external configuration analysis for aircraft engines" to "working ... in the field of nuclear 
reactors." Therefore, the type of engines and nuclear reactors or fuels addressed in-or omitted 
from-the record relate to understanding what the proposed endeavor would be both at the time of 
filing and as articulated thereafter. The type of engines and nuclear reactors or fuels addressed in­
or omitted from-the record also relate to whether the proposed endeavor may have both substantial 
merit and national importance, as required by the first Dhanasar prong. See 8 C.F.R. § 103.2(b)(l); 
see also Matter of Katigbak, 14 I&N Dec. at 49; Matter of Izummi, 22 I&N Dec. at 176; Dhanasar, 
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26 I&N Dec. at 888-91. Relatedly, whether the record contains sufficient evidence that the Petitioner's 
stated employer,c=] has contracted for work with a public or private institution also addresses the 
scope of the Petitioner's proposed endeavor and whether the endeavor may have national importance. 
See id. Thus, contrary to the Petitioner's assertion on motion, the Petitioner did not establish by a 
preponderance of the evidence that his initial proposed endeavor - external configuration analysis for 
aircraft engines - has national importance. 
We note separately that the Petitioner asserts on motion to reconsider that we erred by stating in the 
appeal decision, "[t]he Director's finding of misrepresentation may be considered in any future 
proceeding where admissibility is an issue," citing Matter of 0-, 8 I&N Dec. 295 (BIA 1959). The 
Petitioner farther asserts on motion that an individual "may be found inadmissible at a later date when 
he or she subsequently applies for admission to the United States or applies for adjustment of status to 
permanent resident status," rather than found inadmissible in the adjudication of an immigrant petition 
itself: citing one of our non-precedent decisions dated 2010. The Petitioner also requests that "the 
[p]etition be reopened and reconsidered and the finding of fraud and inadmissibility made against [the 
Petitioner] be rescinded." 
We first note that the Petitioner's reliance on the referenced non-precedent decision is misplaced. In 
addition to containing the passage quoted by the Petitioner above, the non-precedent decision 
specifically states that the "finding of fraud shall be considered in any future proceeding where 
admissibility is an issue" (emphasis added). Because the non-precedent decision referenced by the 
Petitioner on combined motion and the statement in our decision to which the Petitioner objects are 
essentially verbatim language, we are unpersuaded that the non-precedent decision indicates that we 
may have erred in the appeal decision. 
Moreover, neither we nor the Director entered a finding of inadmissibility against the Petitioner. 
Accordingly, neither we nor the Director erred by entering such a finding, and there is no such finding 
to be rescinded if the matter were to be reopened or reconsidered. 
We acknowledge that the Petitioner asserts on motion, "The Service's decision failed to identify with 
specificity the evidence submitted that served as the basis for a finding that the Petitioner and 
Beneficiary committed fraud or willful misrepresentation," citing section 212(a)(6)(C)(i) of the Act, 
Motor Vehicle Mfrs. Ass 'n of US., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 51-54 (1984), 
Qwest Corp. v. Boyle, 589 F.38 985, 998 (8th Cir. 2009), Matter of Y-G-, 20 I&N Dec. 794, 796 (BIA 
1994), and other, unpublished cases. However, the Petitioner also submits on motion, in relevant part, 
"an up-to-date resume" and "an employment verification letter." We incorporate by reference our 
analysis of the misrepresentations in the record discussed in the appeal decision and we note that the 
Petitioner's submission of the resume and letter on motion undermine his assertion that the decision 
failed to identify with specificity the evidence that served as the basis for finding misrepresentation. 
On the contrary, our appeal decision contained a large table that specifically listed numerous items of 
evidence that served as the basis for finding misrepresentation regarding the titles and dates of the 
Petitioner's positions held, apparently simultaneously, since 2010. As we specifically listed in our 
appeal decision, that evidence includes the following: NIW resume, NIW organizational chart in 
NOID response, NIW Form ETA 750 Part B, L-lA initial support letter, NIWI I letter in 
NOID response, L-lA initial support letter, NIW I I letter in NOID response. That the 
Petitioner submitted a new resume and letter indicates that we sufficiently informed him that 
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information provided in a resume and multiple letters in the record were among the evidence that 
served as the basis for finding misrepresentation. 
We farther note that newly submitted evidence is beyond the scope of a motion to reconsider, which 
is limited to evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). 
Additionally, although a motion to reopen must state new facts and be supported by documentary 
evidence, 8 C.F.R. § 103.5(a)(2), the information contained in the resume and letter submitted on 
motion do not present new facts; rather, they address information already in the record that we 
discussed in the appeal decision. 
In summation, although the Petitioner has submitted additional evidence in support of the motion to 
reopen, the Petitioner has not established eligibility. On motion to reconsider, the Petitioner has not 
established that our previous decision was based on an incorrect application of law or policy at the 
time we issued our decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). We 
reserve our opinion regarding whether the record satisfies the second or third Dhanasar prong, and 
any other issue addressed in our prior decision. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) 
("courts and agencies are not required to make findings on issues the decision of which is unnecessary 
to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516,526 n.7 (BIA 2015) (declining 
to reach alternative issues on appeal where an applicant is otherwise ineligible). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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