dismissed EB-2 NIW Case: Avionics Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 24058850 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 05, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner , an avionics engineer, seeks employment-based second preference (EB-2) 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 classification. See Immigration and Nationality 
Act (the Act) section 203(b )(2), 8 U.S.C. § l 153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. We dismissed the Petitioner's subsequent appeal. The matter is now before us on 
combined motions to reopen and reconsider . 8 C.F.R. § 103.5. 
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 
combined motions. 
A motion to reopen must state new facts and be supported by documentary evidence . 8 C.F.R. 
§ 103.5(a)(2). We do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable . Instead, "new facts" are facts that are relevant to the issue(s) raised on motion and 
that have not been previously submitted in the proceeding, which includes the original petition. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
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). We do not consider new facts or evidence in a motion 
to reconsider. 
By regulation, the scope of a motion is limited to the "prior decision." 8 C.F.R. § 103.5(a)(l)(i) . 
Therefore, the filing before us is not amotion to reopen and reconsider the denial of the petition. 
Instead, it is a motion to reopen and reconsider our most recent decision, the dismissal of the 
Petitioner's appeal. Accordingly, we examine any new facts and arguments to the extent that they 
pertain to our prior dismissal of the Petitioner's appeal. 
In requesting a national interest waiver of the job offer requirement, a petitioner must establish that 
they merit a discretionary waiver of the requirement "in the national interest." Section 203(b )(2)(B)(i) 
of the Act. While neither the statute nor the pertinent regulations define the term "national interest," 
Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating 
national interest waiver petitions. Matter of Dhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if the petitioner 
demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
In our appellate decision, we determined that the Petitioner's proposed endeavor has substantial merit. 
However, we concluded that the Petitioner did not establish that her proposed endeavor has national 
importance under the first prong of the Dhanasar analysis. Because the documentation in the record 
did not establish the national importance of her proposed endeavor as required by the first prong of the 
Dhanasar precedent decision, the Petitioner had not demonstrated eligibility for a national interest waiver. 
We concluded that further analysis of her eligibility under the third prong outlined in Dhanasar would 
serve no meaningful purpose. 2 
In her brief on motion the Petitioner states that "the documents listed by the Service in the denial letter 
are proof that the Petitioner has presented all the necessary documents along with the filing and RFE 
response." The Petitioner also states that the Director "ignored the recent updated guidance issued by 
USCIS regarding professionals in the STEM areas." 3 
On motion the Petitioner submits a brief and references evidence already in the record. The 
deficiencies in the already submitted evidence have been identified and discussed in our prior 
decision. 4 The Petitioner's brief on motion does not overcome those deficiencies and does not 
establish that her proposed endeavor has national importance. Therefore, the Petitioner has not stated 
new facts supported by documentary evidence that warrant reopening our prior decision. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 We declined to reach but hereby reserved remaining arguments concerning eligibility under the second and third 
Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds 
when another independent issue is dispositive of the appeal); see also Matter of L-A-C-, 26 T&N Dec. 516, 526 n.7 (BIA 
2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
3 On January 21, 2022, USCTS issued a policy alert updating guidance in the USCTS Policy Manual to address requests for 
national interest waivers for advanced degree professionals or persons of exceptional ability. The guidance clarified how 
the national interest waiver can be used by science, technology, engineering, and mathematics (STEM) graduates and 
entrepreneurs. See 6 USCIS Policy Manual F.5(O)(2), https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-5. 
4 We note that much of this evidence is dated between 2013 and 2018 and was submitted with the initial filing. The 
Petitioner did not supplement the record with new and more current evidence on appeal or in its combined motions. 
2 
The Petitioner asserts that our previous appeal decision was based on an incorrect application of law 
and/or policy. However, the Petitioner does not identify specific errors or explain how our prior appeal 
decision did not follow the regulations and policy guidance. The Petitioner's appeal was filed in 
September 2021, prior to an update to the USCIS Policy Manual in January 2022 regarding STEM 
professions. However, the Petitioner does not specifically explain what evidentiary considerations 
discussed in the policy guidance were overlooked in our appeal decision. Nor does the Petitioner 
submit new or more current evidence with its motions. Upon review, we do not find any error or 
incorrect application of law or policy. The Petitioner has not met the requirements of a motion to 
reconsider. 
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). Here, that burden has not been met. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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