dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 8, 2024 In Re: 31286474 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition 
for Alien Workers (National Interest Waiver) 
The Petitioner, general manager of a private country club, seeks classification as a member of the 
professions holding an advanced degree or of exceptional ability, pursuant to 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 attached to this employment based second 
preference (EB-2) classification. See section 203(b)(2)(B)(i) of the Act. 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. See 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). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish that he met the requirements for a waiver of the job offer and labor certification requirements 
for EB-2 classification. We dismissed a subsequent 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 ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). 
Upon review, we will dismiss the 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 ofCoelho, 20 I&N Dec. 
464,473 (BIA 1992) (requiring that new evidence have the potential to change the outcome). 
The Director determined that the Petitioner had not established the national importance of his endeavor 
to continue employment as the general manager of thel that he was 
well positioned to advance the proposed endeavor, or that it was in the best interest of the United States 
to waive the job offer and labor certification requirements for EB-2 classification in line with the three­
part analytical framework outlined in Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). On appeal, 
the Petitioner asserted eligibility and emphasized his positive track record as general manager of 
_ since 2018. In addition to agreeing with the Director that the Petitioner did not meet the three 
prongs of the Dhanasar framework, we concluded that the Petitioner had also not established 
underlying eligibility for EB-2 classification as a member of the professions with an advanced degree 
because he had not provided sufficient evidence that the positions he held following his bachelor's 
degree amounted to five years of progressive experience in his field of media arts or that he was an 
individual of exceptional ability. 
On motion, the Petitioner submits a brief discussing his eligibility, a letter of employment from S-S-
1, an executed contract between a personal statement, and recommendation 
letters. The Petitioner asserts that these new facts establish eligibility, as they overcome the stated 
grounds for denial in our appeal decision. In addition, the Petitioner contests the correctness of our 
prior decision and relies upon Matter of Caron International Inc. 19 I&N Dec. 791 (Comm. 1988). 
The decision in Caron analyzed a beneficiary's eligibility for non-immigrant classification under 
former section 101(a)(15)(H)(i)(a) of the Act. 8 U.S.C. § 110l(a)(15)(H)(i)(a). 2 Here, the Petitioner 
equates himself to the beneficiary in Caron as an individual who has taken a business that was 
struggling financially and made it profitable. The Petitioner contends that such a turnaround is an 
example of the Petitioner's exceptional ability. 
In our prior decision, incorporated here by reference, we determined that the Petitioner did not provide 
sufficient evidence of 5 years of progressive experience in the field of media arts because his 
employment letter did not contain a description of his job duties as required by regulations. 8 C.F.R. 
§ 204.5(g)( I). The job description is a critical component of determining whether a Petitioner has 
shown progressive experience in their field. On motion, the letter from S-S- provides the job title and 
dates of employment but does not provide a description of the Petitioner's duties with those 
organizations. Similarly, the recommendation letters provided on motion address the Petitioner's 
current role with I land his general demeanor in conducting business. Since the new evidence 
submitted on motion does not overcome the stated grounds for denial, the Petitioner has not established 
his eligibility for EB-2 classification as a member of the professions with a bachelor's degree and five 
years of progressive experience in his field. 
As stated in our prior decision, to be considered a person of exceptional ability, a petitioner must 
establish that they meet 3 of the 6 regulatory criteria found at 8 § C.F.R. 204.5(k)(3)(ii). Caron does 
not analyze the beneficiary's qualifications under the regulations that govern EB-2 adjudication 
because it pertains to a now-repealed section of law surrounding eligibility for a non-immigrant visa. 
The Petitioner does not address our analysis of his eligibility for classification as a person of 
exceptional ability under the current regulations and therefore has not overcome our determination 
that he does not meet those requirements. 
Regarding the national importance of the Petitioner's proposed endeavor to continue employment as 
general manager ofl Ithe _______ _.contract submitted on motion were completed 
after the filing of the petition. Even if the contract showed the proposed endeavor's national 
importance through economic impact to thel Iarea, we may not consider it because it occurred 
after the petition was filed and therefore does not demonstrate eligibility at the time of filing. See 
1 We use initials to protect the privacy of individuals and organizations. 
2 Repealed under Public Law 106-95. § 2(c) Nov. 12, 1999, 113 Stat. 1316. 
2 
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'! Comm'r 1971); 8 C.F.R. § 103.2(b)(l), (12). The 
Petitioner's remaining arguments on motion are based on his success in managing! land returning 
it to profitability. While returning I Ito profitability is an achievement, the evidence in the record 
does not support the Petitioner's argument that continuing to managel Iwill have the significant 
cultural, economic, or social impacts that rise to the level of national importance. 
The Petitioner supplied new recommendation letters on motion, arguing that they demonstrate he is 
well placed to pursue his endeavor as defined in the Dhanasar decision. As stated in our appeal 
decision, the record does not sufficiently link the field of the Petitioner's educational credential, media 
arts, with the performance of general management duties for corporations. Moreover, the letters of 
support provided by the Petitioner on motion do not detail his prior work history, industry recognition, 
or significant contributions to the field of management that would warrant a finding that he is well 
positioned to advance the proposed endeavor. 
The Petitioner's arguments on motion do not directly address the deficiencies identified in our prior 
decision regarding his qualification as an EB-2 immigrant, the national importance of his endeavor, 
his positioning to execute the proposed endeavor or whether, on balance, it would be in the best interest 
of the United States to waive the job offer and labor certification requirements. Accordingly, the 
Petitioner has not established that our prior decision was based on an incorrect application of law or 
policy as required for a motion to reconsider. 8 C.F.R. § 103.5(a)(3). 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the 
Petitioner has not established eligibility. On motion to reconsider, the Petitioner has not established 
that our previous decision was based on an incorrect application of law or policy at the time we issued 
our decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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