dismissed EB-2 NIW Case: Computer Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re : 25920599 
Motion on Admini strative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 21 , 2023 
Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner , a computer engineer , seeks classification as a member of the profes sions holding an 
advanced degree . Immigration and Nationality Act(the Act) section 203(b )(2) , 8 U.S.C. § l l 53(b )(2). 
The Petitioner also seeks a national interest waiver of the job offer requirement that is attached to this 
EB-2 immigrant classification. See section 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 Nebraska Service Center approved the petition and mailed notice of the approval 
to the address of record on August 8, 2022. On August 22, 2022, the Petitioner filed a Form I-290B, 
Notice of Appeal or Motion, as an appeal , identifying the receipt number of the underlying Form I-140 , 
Immigrant Petition for Alien Workers , by the receipt number and the requested benefit type. 
Specifically , the appeal indicated that it sought an appeal of a decision dated April 2 7, 2022 , which 
corresponds to the Director's denial of the Petitioner's prior request to expedite the adjudication of the 
Form I-140, not the Director's decision to approve the benefit request. We dismissed the appeal as 
moot because, as noted above , the Director approved the underlying requested benefit. 
On December 22 , 2022 , the Petitioner filed a combined motion to reopen and motion to reconsider our 
decision to dismiss the appeal as moot. The combined motion specifically identifies the 
Administrative Appeals Office as the office that issued the adverse decision ; therefore, we have 
jurisdiction over the motion. See 8 C.F.R. § 103 .5(a)(l)(ii). We note , however , that the Petitioner 
also references in the combined motion a Form I-485, Application to Register Permanent Residence 
or Adjust Status, for a category over which we do not exercise jurisdiction, and that the referenced 
Form I-48 5 was filed after the date of the Director's Form I-140 approval. We further note that USCIS 
records indicate that the Petitioner has submitted several Forms I-485 with an Alien Number that does 
not match the Alien Number that corresponds to the approved Form I-140 and that USC IS has rejected 
the Forms I-485. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matte r ofCha wathe, 25 I&N Dec. 369 , 375-76 (AAO 2010). We review the questions in this matter 
de novo . Matter of Christo 's, Inc. , 26 I&N Dec . 537 , 537 n.2 (AAO 2015). Upon review , we will 
dismiss the combined motion. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R 
§ I 03.5(a)(2). We do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable. Instead, "new facts" are facts that are relevant to the issue(s) raised on motion and 
that have not been previously submitted in the proceeding, which includes the original application. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
A motion to reconsider must establish that our 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). We do not consider new facts or evidence in a motion 
to reconsider. 
Specifically, our review of this motion to reopen is limited to the issue of whether anew fact, suppmted 
by documentary evidence, establishes that we erred by determining that the appeal of the Form I-140 
is moot because the Director approved the underlying benefit request. 8 C.F.R. § I 03.5(a)(2). In tum, 
our review of this motion to reconsider is limited to the issue of whether, at the time we dismissed the 
appeal of the Form I-140 as moot because the Director approved the underlying benefit request, we 
incorrectly applied a law or policy. 8 C.F.R. § I 03.5(a)(3). 
On motion, the Petitioner discusses a series of temporary relocations, job opportunities, and a dental 
appointment throughout 2021-22. The Petitioner also references at least one Form I-485, and at least 
one Form I-765, Application for Employment Authorization, over which we do not exercise appellate 
jurisdiction. Those issues are separate from the eligibility requirements of a Form I-140, which the 
Director concluded the Petitioner satisfied when approving the Form I-140, over which we exercise 
appellate jurisdiction. The Petitioner does not assert a new fact on motion relevant to whether the 
Director approved the Form I-140, nor does he assert a new fact relevant to whether we erred by 
acknowledging that the Director approved the Form I-140, nor does he assert a new fact relevant to 
whether we erred by concluding that the appeal of the Form I-140 is moot because the Director 
approved the requested benefit. See 8 C.F.R. § 103.5(a)(2). In turn, the Petitioner does not identify a 
law or policy that we may have incorrectly applied when we determined, at the time of our decision, 
that the appeal is moot because the Director approved the underlying benefit request. See 8 C.F.R. 
§ 103.5(a)(3). 
In summation, the Petitioner has not submitted a new fact, supported by documentary evidence, 
sufficientto establish that we erred in concludingthatthe appeal is moot because the Director approved 
the underlying petition. See 8 C.F.R. § 103.5(a)(2). In addition, the Petitioner has not established that 
our previous decision that the appeal is moot because the Director approved the underlying petition 
was based on an incorrect application oflaw or policy and that it was incorrect based on the evidence 
then before us. See 8 C.F.R. § 103.5(a)(3). The petition remains approved and the appeal remains 
moot. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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