dismissed EB-2 NIW Case: Bioethics

U.S. Citizenship 
and Immigration 
Services 
In Re: 20486869 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 25, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a bioethicist, 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 Texas 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 a subsequent appeal, concluding that, although the proposed endeavor 
has both substantial merit and national importance, the record does not establish that the Petitioner is 
well-positioned to advance the endeavor and that, on balance, a waiver of the job off er requirement 
would be beneficial to the United States. The matter is before us again on a combined motion to 
reopen and 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 combined motion. 
I. LAW 
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 application. 
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. 
II. ANALYSIS 
As noted above, we found that the record satisfies both aspects of the first Dhanasar prong, that the 
proposed endeavor has both substantial merit and national importance. 1 However, we found that 1he 
record did not satisfy the second Dhanasar prong-that the Petitioner is well-positioned to advance 
the proposed endeavor-because his training and experience was incomplete or had yet to occur at the 
time he filed the petition. We incorporate our prior decision dismissing the Petitioner's appeal here 
by reference. On combined motion, the Petitioner reasserts that he is well-positioned to advance the 
proposed endeavor. We address the combined motion separately below. 
A. Motion to Reopen 
New evidence in support of the motion to reo en includes the following: (1) a letter from the director 
of the Institute of Clinical Bioethics at s University; (2) a letter from the director of 
I University's  (3) a letter from the University I I 
Center for ( 4) an invitation for the Petitioner to join a team of 
researchers at the University I I Canada; and (5) articles published in 2019 and 2021 that cite 
the Petitioner's work. 
As we discussed in our prior decision, a petitioner must establish eligibility at the time of filing a visa 
petition. 8 C.F.R. § 103 .2(b )(1 ). A visa petition may not be approved ata future date after a petitioner 
becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 
1971 ). 
None of the evidence submitted on motion to reopen may establish eligibility because all of that 
evidence presents sets of facts that did not exist when the Petitioner filed the petition in 2018. The 
letter from I University addresses the Petitioner's post-doctoral fellowship between 
2019-2021, after the petition filing date. Similarly, the letter from I University addresses work 
that the record establishes the Petitioner performed in 2021, after the petition filing date. Likewise, 
the letter from the University I I addresses work the Petitioner performed in 2020 and it 
offers an appointment for 2021-22, all of which is after the petition filing date. In turn, the invitation 
to join a team of researchers at the University I I Canada, is dated November 2021, 
substantially after the petition filing date. The articles submitted in support of the motion to reopen 
were published in 2019 and 2021, after the petition filing date. Although this evidence may be 
considered in support of a newly filed petition, because it all presents a set of facts-work, training, 
experience, citations to the Petitioner's work-that did not exist at the time of filing the petition, it 
therefore may not establish eligibility at the time of filing the petition. See 8 C.F.R. § 103 .2(b)(l ); see 
also Matter o/Katigbak, 14 I&N Dec. at 49. 
Because none of the new facts submitted in support of the motion to reopen establish eligibility at the 
time of filing the petition, the motion to reopen does not establish that, atthe time of filing the petition, 
the Petitioner was well-positioned to advance the proposed endeavor. See 8 C.F.R. § 103.5(a)(2). 2 
1 See MatterofDhanasar, 26T&NDec. 884, 888-91(AA02016), forelaborationon these three prongs. 
2 Moreover, to the extent that the evidence submitted on motion merely re iterates information already in the record 
regarding the Petitioner's training and experiencethatoccurredafterthepetition filing date, it does not present a new fact 
as required by 8 C.F.R. § 103.5(a)(2). 
2 
B. Motion to Reconsider 
Turning to the motion to reconsider, the Petitioner quotes two passages from Dhanasar: "To 
determine whether [a petitioner] 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 orts; [ and] a model or plan for future activities," and: 
We recognize that forecasting feasibility or future success may present challenges to 
petitioners and USCIS officers and that many innovations and entrepreneurial 
endeavors may ultimately fail, in whole or in part, despite an intelligent plan and 
competent execution. We do not, therefore, requirepetitioners to demonstrate that their 
endeavors are more likely than not to ultimately succeed. 
Dhanasar, 26 I&N Dec. at 890. The Petitioner asserts that he had "reached the zenith of [his] 
educational pursuit" at the time of filing and that he has a "well-delineated plan towards advancing 
[his] career," even though his "plan may not have transpired as planned" in his petition. The Petitioner 
also asserts that he satisfies the requirements of Dhanasar under a preponderance of the evidence. 
As it pe1iains to the second Dhanasar prong, a petitioner must establish that they are well positioned 
to advance the endeavor at the time of filing. Accordingly, any improved positioning that arises after 
the filing of the petition is not persuasive in establishing eligibility at the time of filing. See 8 C.F.R 
§ 103.2(b)(l); see also Matter of Katigbak, 14 I&N Dec. at 49. Although a petitioner need not 
establish whether an endeavor is more likely than not to ultimately succeed, a petitioner must 
neve1iheless establish that, atthe time of filing the petition, the petition eris well-positioned to advance 
the proposed endeavor, regardless of the endeavor's ultimate outcome. For the reasons discussed in 
our prior decision, the Petitioner has not established that he is well-positioned to advance the proposed 
endeavor in this case. 
The Petitioner has not established on motion that we misapplied a law or policy and that our decision 
was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R 
§ I 03.5(a)(3). 3 Therefore, we will dismiss the motion to reconsider. 
Because the Petitioner has not satisfied the second Dhanasar prong on motion, we need not address 
whether he has satisfied the third Dhanasar prong. 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). 
3 On motion, the Petitioner draws our attention to the education he had completed at the time of filing the petition. 
However, we acknowledged that in our prior decision, stating, "The Petitioner possesses education consistent with the 
proposed endeavor, bu this training was stillincompletewhenhefiled thepetition." We further discussed the training and 
experience the Petitioner had yet to complete as of the petition filing date. 
3 
III. CONCLUSION 
As the Petitioner has not met the requisite second prong of the Dhanasar analytical framework, we 
conclude that the Petitioner has not established eligibility for, or otherwise merits, a national interest 
waiver as a matter of discretion. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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