dismissed EB-2 NIW Case: Cybersecurity

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 30, 2024 In Re: 32844015 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a cybersecurity entrepreneur, seeks employment-based second preference (EB-2) 
immigrant classification as either a member of the professions holding an advanced degree or an 
individual of exceptional ability, 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. § ll 53(b )(2). 
The Director of the Texas Service Center denied the Petitioner's Form 1-140, Immigrant Petition for 
Alien Workers, concluding that the Petitioner did not establish that he was a member of the professions 
holding an advanced degree or their equivalent, or was an individual of exceptional ability. The 
Director further concluded that the Petitioner did not merit a national interest waiver. We summarily 
dismissed a subsequent appeal because it did not identify specifically any erroneous conclusion of law 
or statement of fact in the unfavorable decision. 1 The matter is now before us on motion to reopen. 
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 reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). 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 of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
On motion, the Petitioner admits that his former counsel failed to submit a brief as she indicated she 
would in his appeal, but claims the error was beyond his control. He further claims that he is eligible 
for EB-2 immigrant classification and submits evidence to establish he is an individual of exceptional 
ability and that he merits a national interest waiver. Given that it was the actions of his prior counsel 
that resulted in a brief not being filed with his appeal through no fault of his own, and in light of the 
new evidence submitted on motion here in support of his eligibility for EB-2 immigrant classification, 
he requests that we reopen his appeal. As noted above, however, our review on motion is limited to 
1 We noted that the Petitioner stated that a brief and/or additional evidence would be submitted to the AAO within 30 
calendar days of filing the appeal, but that he did not submit either. 
reviewing our latest decision. Thus, the Petitioner must submit new facts and supporting evidence 
related to our decision to summarily dismiss his appeal. Here, the Petitioner asserts new facts in the 
form of an ineffective assistance of counsel claim. However, we note the record on motion does not 
include any supporting evidence reflecting that he has complied with the requirements for such a claim 
as described in Matter ofLozada, 19 I&N Dec. 637 (BIA 1988), including an affidavit detailing his 
agreement with prior counsel, evidence of notice to prior counsel of the ineffectiveness allegations, 
and the filing of a complaint with disciplinary authorities, to warrant reopening. Additionally, while 
the Petitioner submits new evidence relating to his overall eligibility for EB-2 immigrant classification 
and the underlying decision to deny his Form I-140, he does not state new facts that establish that he 
submitted a brief or statement on appeal that specifically identified an erroneous conclusion of law or 
statement of fact in the underlying decision being appealed. Because the facts and evidence submitted 
on motion do not address or otherwise overcome the basis for our decision to summarily dismiss the 
prior appeal, they do not meet the requirements of a motion to reopen. Accordingly, the motion to 
reopen will be dismissed. 
ORDER: The motion to reopen is dismissed. 
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