dismissed EB-2 NIW Case: Dermatology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 10, 2024 In Re: 31585414 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, an entrepreneurial dermatologist, seeks classification as a member of the professions 
holding an advanced degree or of exceptional ability. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § l 153(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) 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. Id. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
establish that a waiver of the classification's job offer requirement, and thus of the labor certification, 
would be in the national interest. We dismissed a subsequent appeal affirming the Director's decision. 
The matter is now before us on a combined motion to reopen and motion to reconsider. 
On motion, the Petitioner submits a brief with no new evidence and claims that we "did not give due 
regard to all the pieces of evidence presented by the Petitioner." While the Petitioner references certain 
laws and policies, she has not established that we have erred in applying these laws or policies in our 
appellate decision. Nor does the Petitioner present new facts or provide supporting documentary 
evidence. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(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 petition. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
Here, the Petitioner presents no new facts, and the motion is not supported by any documentary 
evidence. Therefore, we will dismiss the motion to reopen. 
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). 
On motion, the Petitioner asserts that "the Service did not give full consideration to the evidence 
provided by the Petitioner along with the first filing and the RFE response, as it should have been 
given." In a motion to reconsider we do not consider new objections to the earlier denial. The 
Petitioner cannot use the present filing to make new allegations of error at prior stages of the 
proceeding. Here, the Petitioner alleges the same errors in the Director's decision as she did in her 
appellate arguments. We addressed these arguments in our appellate decision. However, the 
Petitioner does not identify any specific error oflaw or fact in our prior appeal decision. Nor does the 
Petitioner assert that our prior appeal decision did not follow the regulations and policy guidance. 
The Petitioner proffers two issues on appeal. First, the Petitioner appears to argue an issue that has 
already been settled. She asserts that "she did not alter the fundamental nature of her proposed 
endeavor" and "the entrepreneurial aspect introduced in our RFE response serves to bolster her ability 
to deliver and improve upon the proposed benefits outlined in her original petition." In our decision, 
we acknowledged the Petitioner's substantial additions to the proposed endeavor, but we determined 
that these "extensive revisions, whilst concerning, did not disrupt the character and nature of the 
proposed endeavor initially described by the Petitioner." Therefore, the Petitioner has already 
prevailed on this discrete issue. 
Second, she contends that our decision "erroneously argues that the Petitioner's business seeks to join 
the HUBZone program." 1 And that the Petitioner "is well aware her business does not qualify as a 
HUBZone company." Consequently, she claims while her business plan signifies a commitment to 
bring investments to an economically depressed area, thereby contributing to its revitalization, at no 
point did she claim eligibility for benefits exclusive to HUBZone companies. While we did discuss, 
at length, the Petitioner's obvious ineligibility for the HUB Zone program, we also considered that 
even if the Petitioner only located or intended to locate her business in the underutilized business zones 
identified by the Small Business Administration (SBA), and not actually participate in the HUBZone 
program, such a maneuver would not establish the national importance of her endeavor under prong 
one of the framework discussed in Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016). We 
noted that, the record did not adequately establish the parameters the SBA considers in establishing 
HUBZones, such that we could evaluate whether the underutilized business zones the SBA identifies 
would be akin to the economically depressed areas which were of interest to the Petitioner. Even on 
motion, the record does not establish that, beyond the limited benefits provided to its prospective 
clients and employees, the Petitioner's proposed endeavor has broader implications rising to the level 
of having national importance or that it would offer substantial positive economic effects. 
The Petitioner has not established proper grounds for reconsideration. The Petitioner cannot meet the 
requirements of a motion to reconsider by broadly disagreeing with our conclusions; the motion must 
demonstrate how we erred as a matter of law or policy. See Matter of O-S-G-, 24 I&N Dec. 56, 58 
(BIA 2006) ( finding that a motion to reconsider is not a process by which the party may submit, in 
essence, the same brief and seek reconsideration by generally alleging error in the prior decision). 
1 See https: //www.sba.gov/federal-contracting/ contracting-assistance-programs/hubzone-program. 
2 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. Section 291 of the Act, 8 U.S.C. § 1361. For the reasons discussed 
above, the Petitioner has not shown proper cause for reopening the proceedings or reconsideration of 
our prior decision. Therefore, the Petitioner has not established eligibility for the benefit sought under 
the facts presented to us. 2 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
2 A review of the Petitioner's record indicates that she filed a new request for EB-2 classification on October 24, 2023, and 
it was approved by the Director on February 21, 2024. 
3