dismissed EB-2 NIW Case: Bakery And Pastry

  
 
 
 
 
 
U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 9, 2024 In Re: 34927647 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a bakery and pastry chef, seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability, 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. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding the Petitioner did not 
establish that the Petitioner qualified for the underlying visa classification, nor that a waiver of the 
required job offer, and thus of the labor certification, would be in the national interest. The Director 
dismissed subsequent motions from the Petitioner. We dismissed the Petitioner's appeal. The matter 
is now before us on combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&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). A motion to reconsider must establish that our prior 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). 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 
requirements and demonstrate eligibility for the requested benefit. See Matter of Coelho, 20 I&N Dec. 
464,473 (BIA 1992) (requiring that new evidence have the potential to change the outcome). 
The Petitioner, a bakery and pastry chef, seeks to establish her eligibility for the underlying EB-2 
immigrant classification as an individual of exceptional ability. In our previous decision, we 
concurred with the Director that the Petitioner satisfied only two of the six categories to demonstrate 
exceptional ability under 8 C.F.R. § 204.5(k)(3)(ii). The Director found the Petitioner established she 
possesses an academic degree relating to the area of claimed exceptional ability and ten years of full­
time experience in the occupation. However, the Director concluded, and we agreed on appeal, the 
Petitioner did not meet any of the additional criterion for classification as an individual of exceptional 
ability. 
On motion, the Petitioner submits a brief: and copies of evidence previously submitted on appeal. We 
interpret "new facts" to mean those that are relevant to the issues raised on motion and that have not 
been previously submitted in the proceedings, which includes within the original petition. As the 
evidence submitted on motion was previously submitted in these proceedings, they do not constitute 
"new facts," and the Petitioner's motion does not meet the requirements of a motion to reopen. 
The Petitioner's brief on motion reiterates claims based on the previously submitted evidence and 
continues to assert the Petitioner satisfies the requirements for classification as an individual of 
exceptional ability. However, the Petitioner does not acknowledge the specific findings and reasoning 
included in our prior decision. Specifically, the Petitioner does not address our findings that she does 
not meet at least three of the sixth regulatory criteria to demonstrate exceptional ability, or our 
reservation of the issues with respect to whether she merits a national interest waiver as a matter of 
discretion. In our appeal decision, we determined the Petitioner had not demonstrated her: 1) 
profession or occupation requires the certificates she attained or that membership in the Association 
of Cake Designers and Sugar Artists (ACDSA) constitutes a license, 2) salary or other renumeration 
demonstrated exceptional ability, as the evidence of earnings were for work as an administrator rather 
than the claimed area of exceptional ability, 3) membership with the ACDSA constitutes membership 
in a professional organization, 4) letters ofrecommendation are sufficient to demonstrate recognition 
for achievement and significant contributions to the industry or field by the requisite entities as they 
do not include documentation to establish the authors' credentials and do not address the Petitioner's 
achievements and significant contributions to the industry or field, or 5) comparable evidence criterion 
was met as she did not explain how the standard criteria do not readily apply to her occupation as a 
baker and pastry chef. See 8 C.F.R. §§ 204.5(k)(3)(ii), (iii). Overall, the Petitioner has not asserted 
why our decision was incorrect based on the evidence of record or how our prior decision was based 
on an incorrect application of law or policy. As the Petitioner has not addressed why our prior 
dismissal of the appeal was incorrect or submitted new facts on motion, she has not met the 
requirements for a motion to reopen or a motion to reconsider. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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