dismissed EB-2 NIW Case: Business Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 08, 2024 In Re: 29504917 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a general and operations manager, 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 EB-2 immigrant 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 although the Petitioner 
established her eligibility for EB-2 classification as an advanced degree professional, she did not 
demonstrate that a waiver of the job offer requirement would be in the national interest. We dismissed 
a subsequent appeal. The matter is now before us on motion to reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&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). 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. 
In our decision dismissing the Petitioner's appeal, we withdrew the Director's determination that she 
established her eligibility for EB-2 classification as a member of the professions holding an advanced 
degree. In doing so, we acknowledged that the Petitioner holds the foreign equivalent of a U.S. 
bachelor's degree but noted that she did not demonstrate that she has either a United States academic 
or professional degree or a foreign equivalent degree above that of baccalaureate or at least five years 
of progressive work experience following completion of her bachelor's degree as required by the 
definition of "advanced degree" at 8 C.F .R. § 204.5(k)(2). Although the Petitioner documented that 
she had more than five years of work experience, we emphasized that much of that experience was 
accrued prior to her completion of a bachelor's degree and therefore could not be counted for purposes 
of establishing her eligibility for the requested EB-2 classification. 
We also addressed the Petitioner's request for a national interest waiver and the Director's adjudication 
of that request under the three-prong adjudicatory framework established by Matter ofDhanasar, 26 
I&N Dec. 884 (AAO 2016). In doing so, we withdrew the Director's conclusory determination that 
the Petitioner met the first prong of the Dhanasar framework, which requires a petitioner to 
demonstrate that their proposed endeavor in the United States has both substantial merit and national 
importance. 1 We provided a multi-page analysis of the Petitioner's evidence and concluded that she 
did not establish the national importance of her proposed endeavor. We reserved discussion of the 
remaining two prongs under the Dhanasar framework, noting that she could not qualify for a national 
interest waiver without meeting the first prong. 
On motion, the Petitioner asserts that "USCIS did not allow me to produce additional evidence to 
establish, under the preponderance of the evidence standard, that I am indeed a professional with an 
advanced degree." She requests that we reconsider our decision with respect to her eligibility for EB-
2 classification or provide her with an opportunity to submit additional evidence, noting that the 30-
day period provided for filing a motion allowed her insufficient time. She also requests that "according 
to the previous decision made by USCIS, the Administrative Appeals Office's decision be 
reconsidered to recognize that my Proposed Endeavor has substantial merit and national importance, 
according to the evidence provided in the record's petitions, answers, affidavits and reports." 
The Petitioner suggests that we erred by dismissing the appeal without first allowing her an 
opportunity to submit supplemental evidence of her eligibility for EB-2 classification as an advanced 
degree professional. However, she does not claim that our adverse determination was based on an 
incorrect application of law or policy or that it was incorrect based on the evidence in the record at the 
time we issued our decision. Therefore, she has not met the requirements of a motion to reconsider at 
8 C.F.R. § 103.5(a)(3). While the Petitioner states she could establish her eligibility for the requested 
EB-2 immigrant classification if given an opportunity to submit additional evidence, we note that she 
opted to file a motion to reconsider rather than a motion to reopen, which specifically allows for the 
submission of new facts supported by documentary evidence. See 8 C.F.R. § 103.5(a)(2). 
As discussed in our prior decision, although the Petitioner established that she holds the foreign 
equivalent of a U.S. bachelor's degree, she did not demonstrate that she had either a degree above that 
of a baccalaureate or the required five years of post-baccalaureate work experience required for this 
classification when she filed this petition in December 2020. If all required initial evidence for a 
benefit request is submitted but does not establish eligibility, U.S. Citizenship and Immigration 
Services (USCIS) may deny the benefit request for ineligibility without requesting additional 
evidence. 8 C.F.R. § 103.2(8)(iii). 
Here, there is no indication that additional evidence could establish the Petitioner's eligibility for 
classification as an advanced degree professional, as she does not claim that she had five years of post­
baccalaureate work experience at the time of filing. Therefore, the Petitioner has not established that 
1 As observed in our previous decision, the Director did not identity or describe the Petitioner's proposed endeavor in the 
denial decision or discuss or analyze any of the evidence in the record when making a determination that the Petitioner 
met the first prong of the Dhanasar framework. The Director determined that the Petitioner did not satisfy the second or 
third prongs of the Dhanasar framework and denied the petition on that basis. 
2 
we erred by withdrawing the Director's determination and dismissing the appeal, in part, based on her 
ineligibility for EB-2 classification as an advanced degree professional. 2 
Similarly, the Petitioner does not contest our reasons for concluding that she did not establish the 
national importance of her proposed endeavor under the first prong of the Dhanasar framework. 
Rather, she generally requests that we reconsider our decision and instead defer to the Director's 
conclusory and unsupported determination that she had met the first prong requirements. However, 
in adjudicating an appeal, we review the questions presented de nova. See Matter ofChristo 's Inc., 26 
I&N Dec. 537, 537 n.2 (AAO 2015). We are not bound by a service center or district director's 
decision. See, e.g., La. Philharmonic Orchestra v. INS, 248 F.3d 1139 (5th Cir. 2001) (per curiam). 
The Petitioner's suggestion that we were obligated to defer to the Director's determination is therefore 
not persuasive. 
Based on the foregoing discussion, the Petitioner has not demonstrated that our prior decision to 
dismiss her appeal was based on an incorrect application of law or policy. Accordingly, she has not 
shown proper cause for reconsideration of that decision. The motion to reconsider will be dismissed. 
8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
2 In her initial submission, the Petitioner did not claim, in the alternative, that she is eligible for classification as an 
individual of extraordinary ability in the sciences, arts or business under section 203(b )(2) of the Act. 
3