dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-D-P-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: SEPT. 22,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an entrepreneur, seeks classification as a member of the professions holding an 
advanced degree or as an individual of exceptional ability. 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 normally attached to this immigrant classification. See 
§ 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, concluding that the Petitioner did not 
qualify as a member of the professions holding an advanced degree, and that he had not established 
that a waiver of a job offer requirement would be in the national interest. The Petitioner appealed 
the matter to us, and we dismissed the appeal. Specifically, we found that he did not qualify tor 
clas·sification as either an advanced degree professional or an individual of extraordinary ability, and 
was therefore not eligible for a national interest waiver.' 
The matter is now before us on a combined motion to reopen and reconsider. On motion, the 
Petitioner submits a brief stating that he is providing new facts to establish eligibility and that our 
previous decision contained "mistakes of law and fact." 
Upon review, we will deny the motion. 
I. LAW 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § 1 03.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.F.R. § 103.5(a)(3). 
1 
See Matter of D-D-P- 10# 457568 (AAO May 25, 20 17). 
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Matter of D-D-P-
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying visa classification, as either an advanced degree professional or an individual of 
exceptional ability in the sciences arts or business. Because this classification normally requires that 
the individual's services be sought by a U.S. employer, a separate showing is required to establish 
that a waiver of the job offer requirement is in the national interest. See section 203(b )(2) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," we recently 
set forth a new framework for adjudicating national interest waiver petitions. See Dhanasar, 26 I&N 
Dec. 884.2 
II. ANALYSIS 
In his combined motion to reopen and reconsider, the Petitioner asserts that he is providing new 
evidence of his eligibility and that our previous decision incorrectly applied the law and facts. He 
maintains that he meets the requirements for classification both as a member of the professions 
holding an advanced degree and as an individual of exceptional ability. We consider each below. 
As a preliminary matter, the Petitioner maintains in his motion to reconsider that our previous 
decision applied an improper standard of proof. He contends that we applied a "clear and 
convincing" standard rather than the required "preponderance of the evidence" standard. He 
correctly notes that a petitioner must establish that he meets each eligibility requirement of the 
benefit sought by a preponderance of the evidence. Matter ofChawathe, 25 I& N Dec. 369, 375-76 
(AAO 2010). However, he does provide further explanation or evidence to support his contention 
that we applied the incorrect standard in adjudicating his appeal. 
A. Advanced Degree Professional 
The Petitioner stated on his Form I-140, Immigrant Petition for Alien Worker, Part 2, that he is seeking 
second preference classification as a "member of the professions holding an advanced degree or an 
alien of exceptional ability." As such, we adjudicated the appeal according to the second preference 
classification requirements. 
We noted in our previous decision that the record includ<;;:d an ETA Form 9089, dated February 27, 
2016, indicating that the highest level of education that the Petitioner had achieved was high school. 
The Petitioner confirmed in his appellate submission that he has not yet attained an advanced degree 
and stated that he is currently enrolled in a Master's degree program in business administration at the 
He further asserted that he is studying criminal justice with 
online, yet he "has not completed the program." As such, we found that the Petitioner 
had not established his eligibility as a member of the professions holding an advanced degree at the 
time of filing. 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD07). 
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Matter of D-D-P-
On motion, the Petitioner avers that he "has submitted documentation to show that he has earned 
through work experience and academic studies sufficient credit from March 2013 to be accepted in 
the Master of Business Administration program." He also indicates that 
he "earned 13 credits towards his Bachelor of Science degree from along with 
full course sessions at the in 1997 and 1999." He 
claims that he meets the visa preference classification based upon his "official academic record" and 
"ample documentation of contracts and business related activities which show that he has functioned 
at the highest levels for a sustained period of time." He offers no additional evidence, however, to 
show that he has completed a U.S. baccalaureate degree or a foreign equivalent degree, nor does he 
address the inconsistencies in the record regarding his academic record. Accordingly, he has not 
demonstrated through his motion to reopen that he qualifies as an advanced degree professional or 
the equivalent through the attainment of a baccalaureate degree and five years of progressive 
expenence. 
For purposes of a motion to reconsider, the question is whether our decision was correct based on the 
record that existed at the time of adjudication. Here, arguments the Petitioner offers on motion do 
not establish that our previous findings were based on an incorrect application of the law, regulation, 
or USCIS policy, nor does the motion demonstrate that our latest decision was erroneous based on 
the evidence before us at the time of the decision. 
B. Exceptional Ability 
Regarding the Petitioner's qualification as an individual with exceptional ability in business, our 
appellate decision determined that the Petitioner did not establish he meets any of the six regulatory 
criteria at 8 C.F.R. § 204.5(k)(3)(ii). We further found that the record in the aggregate did not support a 
finding that he has achieved the level of expertise required for exceptional ability classification. 
On motion, he claims that he has "substantially met these requirements," and that we "failed to 
consider the objective business documentation submitted" which "shows the significance of [his] 
original contributions and achievement in the business world and the material facts that abundantly 
support his claim of exceptional ability." He does not provide new evidence; rather, he argues that 
the previously submitted evidence establishes his eligibility. Accordingly, he has not demonstrated 
through his motion to reopen that he satisfies this prong. 
In the motion to reconsider, the Petitioner claims that he meets five of the six evidentiary requirements, 
8 C.F.R. § 204.5(k)(3)(ii)(B-F); however, he does not offer pertinent precedent decisions or legal 
citations that demonstrate our latest decision was based on an incorrect application of law or USC IS 
policy. Nevertheless, we address each claimed criteria below. 
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Matter of D-D-P-
Evidence in the form of letter(s) from current or former employer(!>) showing that the 
alien has at least ten years offull-time experience in the occupation for which he or she 
is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
The record does not include letters from prior employers attesting to the Petitioner's experience in the 
field. On motion, he maintains that he has provided evidence in the form of corporate governance 
documents and contracts that establish that he has been "self-employed" and owns a majority of 
controlling shares in five companies. He resubmits the corporate formation documents and copies of 
Nigerian government contracts with 
and As we noted in our appellate 
decision, it is unclear how these companies relate to the Petitioner as his name does not appear on most 
of the documents. The memorandum of association for and the articles of 
association for do list the Petitioner as "director." However, the Petitioner 
provided a resume and a Form 9098 documenting his employment history and neither document 
references as a prior employer. The resume indicates that the Petitioner was 
employed by from 2012 until 2014, and 
from 2014 until2015. 
Furthermore, while the Petitioner claims that he was a "director" of the 
corporate formation documents list his spouse, as the sole director of the 
corporation. Regardless, neither company provided a letter showing the Petitioner's full-time 
experience in his occupation. Finally, we note that the Petitioner indicates that he is currently employed 
by yet, this organization did not provide a letter in support of the 
Petitioner's eligibility. As such, he has not established any error in our finding regarding this criterion. 
A license to practice the profession or cert~jication for a particular profession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
On motion, the Petitioner claims that he meets this criterion based upon his receipt of a license as a 
salesman from the The Petitioner is seeking eligibility as 
an individual of exceptional ability based upon his experience as an entrepreneur. He has not shown 
that a license to sell home improvement services relates to his stated profession. As such, he has not 
demonstrated error in our finding that he does not meet this criterion. 
Evidence that the alien has commanded a salary, or other remuneration .for services. 
which 
demonstrates exceptional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
The Petitioner avers on motion that he meets this criterion based upon the contracts contained in the 
record. As we discussed previously, the record includes copies of Nigerian government contracts with 
and 
The contracts are for services to install solar infrastructure and vary in value. 
Many do not reference the Petitioner and cannot be considered his "salary." Additionally, the 
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Matter of D-D-P-
) 
remuneration noted in the contracts is ascribed to the contracting company, not the Petitioner 
individually. As such, he has not met the plain language of this criterion. 
Evidence of membership in professional associations. 8 C.F.R. § 204.5(k)(3)(ii)(E). 
The Petitioner maintains on motion that he meets this criterion based upon evidence that 
paid a training contribution to the Nigerian government in 2012, and registered with 
the Nigeria Social Insurance Trust Fund in 2013. The record does not include evidence that either 
organization is a professional association. Furthermore, while the Petition claims on motion that 
business registrations with the Federal Inland Revenue Service and the Pension Commission meet this 
criterion, he has not offered evidence or information explaining how these entities qualify as 
professional associations. 
Evidence ofrecognitionfor achievements and signfficant contributions to the indusl!y 
or field by peers, governmental entities, or professional or business organizations. 
8 C.F.R. § 204.5(k)(3)(ii)(F). 
As we stated in our appellate decision, the Petitioner has not provided letters or testimony from 
interested parties attesting to his achievements or significant contributions. On motion, the Petitioner 
claims that he has been "confirmed and recognized"for achievements and contributions. He does not 
offer any additional evidence or explanation to support his contention that our latest decision was 
based on an incorrect application of law or USCIS policy. As such, he has not established that he 
meets this regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
In sum, the evidence does not establish that the Petitioner meets at least three of the six regulatory 
criteria at 8 C.F.R. § 204.5(k)(3)(ii). Further, a review of the record in the aggregate does not support a 
finding that he has achieved the level of expertise required for exceptional ability classification. 
III. CONCLUSION 
In this matter, the evidence provided in support of the motion to reopen does not overcome the 
grounds underlying our previous decision, and the motion to reconsider is not supported by any 
pertinent precedent decisions or legal citations that demonstrate our latest decision was based on an 
incorrect application of law or USCIS policy. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Afatter of D-D-P-, ID# 755301 (AAO Sept. 22, 2017) 
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