dismissed EB-2 NIW Case: Business Administration

U.S. Citizenship 
and Immigration 
Services 
In Re: 20008913 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 17, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner 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. 
§ l l 53(b )(2). 
The Director of the Nebraska 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 agreed with the Director and dismissed the Petitioner's appeal, additionally 
concluding that the Petitioner had not established that he satisfies the regulatory requirements for 
classification as a member of the professions holding an advanced degree. The Petitioner filed a 
combined motion to reopen and reconsider our decision dismissing the appeal. We dismissed the 
combined motion because it was untimely filed. The matter is now before us again on a combined 
motion to reopen and reconsider our previous decision to dismiss the combined motion. Upon review, 
we will dismiss the motions. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must.first demonstrate qualification 
for the underlying EB-2 visa classification (emphasis added), as either an advanced degree 
professional or an individual of exceptional ability in the sciences, arts, or business . Because this 
classification 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. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
Furthermore, while neither the statute nor the pertinent regulations define the term "national interest," 
we set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has 
established eligibility for EB-2 classification (emphasis added), U.S. Citizenship and Immigration 
Services (USCIS) may, as a matter of discretion,2 grant a national interest waiver if a petitioner 
demonstrates: ( 1) that the foreign national' s proposed endeavor has both substantial merit and national 
importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) 
that, on balance, it would be beneficial to the United States to waive the requirements of a job offer 
and thus of a labor certification. 
In order to show an individual is a professional holding an advanced degree, the petition must be 
accompanied by "[a]n official academic record showing that the [individual] has a United States 
advanced degree or a foreign equivalent degree." 8 C.F.R. § 204.5(k)(3)(i)(A). Alternatively, the 
Petitioner may present "[a]n official academic record showing that the [individual] has a United States 
baccalaureate degree or a foreign equivalent degree, and evidence in the form of letters from current 
or former employer(s) showing that [the individual] has at least five years of progressive post­
baccalaureate experience in the specialty." 8 C.F.R. § 204.5(k)(3)(i)(B). 
A motion to reconsider is based on an incorrect application of law or policy, and a motion to reopen 
is based on documentary evidence of new facts. The requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
Under 8 C.F.R. § 103.5(a)(l) and 8 C.F.R. § 103.8(b), in general, motions must be filed within 33 days 
of the adverse decision. In response to the coronavirus (COVID-19) pandemic, however, U.S. 
Citizenship and Immigration Services (USCIS) has extended the deadline for filing a Form I-290B, 
Notice of Appeal or Motion. A petitioner may file a Form I-290B within 63 calendar days from the 
date of the adverse decision, if USCIS issued the decision between March 1, 2020, and January 15, 
1 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 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). 
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2022. 3 As relating to a motion to reopen the proceeding, the filing deadline may be excused in the 
discretion of USCIS if a petitioner demonstrates that the delay was reasonable and was beyond their 
control. 8 C.F.R. § 103.S(a)(l). The regulations provide no corresponding discretion to excuse an 
untimely motion to reconsider. 
II. ANALYSIS 
We dismissed the Petitioner's appeal on December 22, 2020. 4 We received the Petitioner's previous 
motions on February 24, 2021, more than 63 days after we dismissed the appeal. In support of the 
instant motions, the Petitioner presents a U.S. Postal Service (USPS) receipt indicating that he mailed 
his previous motions on February 16, 2021, utilizing "priority overnight service." The USPS receipt 
shows that the expected delivery date was February 17, 2021, but the motions did not arrive at USCIS 
until February 24th, after the filing deadline. The Petitioner asserts that the mailing delay was 
reasonable and was due to USPS shipping delays that were beyond his control. The Petitioner asserts 
that he "exercised reasonable diligence" in filing the prior motions and indicates that he disagrees with 
our decision to dismiss them as untimely. We will dismiss the motions. 
A. Motion to Reconsider 
The Petitioner asks that we "approve this motion in [ our] discretionary authority .... " contending that 
"[s]hort delays in the mail are not a ground to summarily dismiss[] an appeal without reconsidering 
reasonable explanation and unintentional delays beyond petitioner's control and not fault." The issue to 
be determined in this motion to reconsider is whether we erred in dismissing the Petitioner's previous 
untimely motions. As noted above, USCIS regulations do not provide discretion to excuse an untimely 
motion to reconsider. See AAO Practice Manual, Ch. 4.62(c), https://www.uscis.gov/aao-practice­
manual. Therefore, we did not err in dismissing the prior motion as untimely, and we will also dismiss 
the instant motion to reconsider. 
B. Motion to Reopen 
In support of his motion to reopen, the Petitioner asserts that his delay in filing the motion "was 
unavoidable and not within the control of the Petitioner but rather [ due to] some administrative or 
other error by [USPS]." We may grant a motion to reopen if it satisfies the requirements collectively 
enumerated in 8 C.F.R. § 103 and demonstrates eligibility for the requested immigration benefit. 
We have considered the evidence provided in support of the instant motion and the previous untimely 
motions and conclude that exercising our discretion to grant the motion to reopen is not warranted in 
this case. Specifically, even if we were to excuse the late filing of the motion to reopen, the evidence 
provided on motion does not establish that the Petitioner qualifies for the EB-2 classification as a 
member of the professions holding an advanced degree. 5 Here, the Petitioner has not presented new 
facts on motion to establish that at the time he filed the petition, he satisfied the regulatory 
requirements for the EB-2 classification. Rather, he contends that based on previously submitted 
3 USCIS Extends Flexibilityfor Responding to Agency Requests, available at https://www.uscis.gov/newsroom/alerts/uscis­
extends- flexibility- for-responding-to-agency-requests. 
4 See our previous decision dismissing the appeal at ID# 8468042 (AAO DEC. 22, 2020). 
5 The Petitioner does not contend, nor does the record establish that he is eligible for the EB-2 classification as an individual 
of exceptional ability. See 8 C.F.R. § 204.5(k)(2). 
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evidence, he "has provided enough documentation of his eligibility including [his] official academic 
records and letters from his past and current employers demonstrating his progressive work experience 
in the field." Importantly, the Petitioner's general reference to evidence submitted prior to the filing 
of the motions does not meet the requirements of a motion to reopen as set forth at 8 C.F.R. 
§ 103.5(a)(2). 
As discussed in our decision dismissing the appeal which we incorporate herein, the Petitioner filed the 
petition on October 15, 2018. He obtained a bachelor of science degree in business administration from 
[S-] College in the Philippines in March 2014, less than five years prior to the filing of the petition. Even 
if the Petitioner established that his foreign bachelor's degree is equivalent to a U.S. baccalaureate degree 
(which is not sufficiently evidenced in the record), he has not demonstrated at least five years of 
progressive post-baccalaureate experience in his specialty at the time he filed the petition. The 
Petitioner must establish eligibility at the time of filing the petition. 8 C.F.R. § 103.2(b)(l). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. See 
Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998); Matter of Katigbak, 14 I&N Dec. 
45, 49 (Comm. 1971). 
For the foregoing reasons we decline to extend our discretion to excuse the Petitioner's untimely filed 
motions as the Petitioner has not demonstrated eligibility for the requested immigration benefit. 
Moreover, we will not further address the Petitioner's evidence on motion regarding our remaining 
basis to dismiss the Petitioner's appeal, which focuses on whether the Petitioner is eligible for a 
national interest waiver. There is no constructive purpose in addressing it because it does not change 
the outcome of the motion. 6 
ORDER: The motion to reconsider is dismissed. 
FURTHER ORDER: The motion to reopen is dismissed. 
6 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 of L-A-C-, 26 l&N Dec. 516,526 n.7 (BIA 
2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
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