dismissed EB-2 NIW Case: Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 18, 2025 In Re: 36617821 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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. § 1153(b )(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, but 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 a 
motion to 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 
motion. 
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). Because the scope of a motion is limited to the 
prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. § 103.5(a)(l)(i), 
(ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested 
benefit. 
In our most recent decision dismissing the Petitioner's appeal, we determined that the Petitioner's 
revised endeavor statement submitted in response to the Director's request for evidence (RFE) 
amounted to a material change to his proposed endeavor. We noted that the business plan, which was 
submitted in response to an RFE, amounted to a material change to the petition because the Petitioner 
did not outline an intention to start his own business in the documentation initially included with his 
petition. Accordingly, we informed the Petitioner that we would not consider the materially changed 
proposed endeavor on appeal, as a petitioner must establish eligibility at the time of filing. 1 And, 
1 8 C.F.R. §§ 103 .. 2(b)(l2); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg '] Comm ' r 1971) (confirming that" [a] 
relying on Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998), we also informed the 
Petitioner that he may not make material changes to his petition in an effort to make a deficient petition 
conform to USCIS requirements. We reviewed the proposed endeavor as described with the initial 
petition and concluded that the Petitioner did not establish that the proposed endeavor has substantial 
merit or national importance, as required by the first Dhanasar prong; therefore, he is not eligible for 
a national interest waiver. We determined that the Petitioner did not provide any new evidence or 
arguments on appeal to overcome the Director's determination. 
We also reserved the Petitioner's appellate arguments regarding his eligibility under Dhanasar 's second 
and third prongs, as considering them would have served no meaningful purpose. See INS v. 
Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not required to make "purely advisory 
findings" on issues that are unnecessary to the ultimate decision); 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). For the sake of brevity, we incorporate our previous analysis of the record and 
will repeat only certain facts and evidence as necessary to address the Petitioner's assertions on 
motion. 
On motion, the Petitioner contests the correctness of our prior decision and states that we were 
factually and legally incorrect in finding that the Petitioner materially changed his proposed endeavor. 
The Petitioner also contends that we did not follow the proper evidentiary standard and that we ignored 
evidence submitted and should now review the entire record. 
On motion, the Petitioner asserts that our decision did not give full consideration to the evidence of 
record. However, as noted in our decision, due to the material change in the proposed endeavor we 
reviewed the documentation submitted with the initial petition. Concerning the determination of 
material change, the Petitioner does not adequately explain how his newly intended endeavor, as 
outlined in his response to the RFE, to start his own business does not constitute material change. 
Further, the Petitioner does not specifically address our determination relating to Dhanasar 's first 
prong or establish that it was in error. Instead, the Petitioner makes general assertions that our 
dismissal of his appeal is wrong. Such assertions do not establish that our appellate decision was 
incorrect and do not oblige us to re-adjudicate the appeal de novo. 
The Petitioner further alleges that we did not apply the proper standard of proof in this case. Except 
where a different standard is specified by law, the "preponderance of the evidence" is the standard of 
proof governing immigration benefit requests. See Matter of Chawathe, 25 I&N Dec. at 375 (AAO 
2010). Accordingly, "preponderance of the evidence" is the standard of proof governing national 
interest waiver pet1t10ns. See generally 1 USCIS Policy Manual, E.4(B), 
https://www.uscis.gov/policy-manual. While the Petitioner asserts that he has provided evidence 
sufficient to demonstrate his eligibility for a national interest waiver, he does not further explain or 
identify a specific instance in which we applied a standard of proof other than the preponderance of 
evidence in dismissing the appeal. 
petitioner must establish eligibility at the time of filing" and that "a petition cannot be approved at a future date after the 
petitioner becomes eligible under a new set of facts") 
2 
The Petitioner has not established proper grounds for reconsideration. Our prior decision properly 
analyzed the Petitioner's assertions. The Petitioner cannot meet the requirements of a motion to 
reconsider by broadly disagreeing with our conclusions; the motion must demonstrate how we erred 
as a matter of law or policy. See Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (finding that a 
motion to reconsider is not a process by which the party seeks reconsideration by generally alleging 
error in the prior decision). 
Since your brief does not establish that our decision on appeal was based on an incorrect application 
of law or policy, nor is it supported by any relevant caselaw, statute, or regulation, your motion to 
reconsider must be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
3