dismissed EB-2 NIW Case: Domestic Violence Advocacy

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
. and Immigration 
Services 
DATE: FEB 0 1 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: ·Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Allen of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b )(2) " 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be· advised 
that any further inquiry that" you might have concerning your case must be made to that office .. 
If you believe the AAO inappropriately applied the ~aw in reaching its decision, or you have additional 
information that you wish to have considered, you rnay file a motion to reconsider or a motion to reopen in 
accordance with the instruCtions on Form. I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do .not tile any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~ Ji:wn Rosenberg . · . . . . 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal. The matter 
is now before the AAO on a motion to reopen and reconsider. The AAO will dismiss the motion. 
The petitioner seeks classification under section 203(b)(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the 'professions holding an advanced degree. The 
petitioner intends to serve as a domestic violence ,victim advocate. The petitioner asserts that an 
exemption from the requirement of a job offer, and thus of a labor certification, is in the national 
interest of the United States. The director found that the petitioner qualifies for classification as a 
member of the professions holding an advanced degree, but that the petitioner has not established that 
an exemption from the requirement of a job offer would be in the national interest of the United States. 
The AAO, in dismissing the appeal, affirmed the second finding but withdrew the first,' concluding that 
the petitioner had not shown eiigibility as a member of the professions holding an advanced degree. 
The AAO incorporates its August 30, 2012 dismissal notice by reference. That decision contains 
rurther.-information about the procedural history of the matter now under consideration. Briefly, the 
AAO's August 2012 decision covered the following key points: 
• Section 203(b)(2)(A) of. the Act makes immigrant visas available "to qualified 
immigrants who. are members of the professions holding advanced degrees or their 
equivalent ... whose services in the ... professions ... are sought by an employer in 
the United States." Section 203(b)(2)(B) of the Act permits a waiver of the job offer 
· requirement "in the national interest." · 
• In reNew York State Dept. of Transportation (NYSDO'I), 22 I&N Dec. 215 (Act. 
Assoc. Comm 'r · 1998), ·established a three-pronged test for the national interest 
waiver. First, the petitioner must show that the alien seeks employment in an area of 
substantial intrinsic merit. Next, the. petitioner must show that the proposed benefit 
-will be national in scope. Finally, the petitioner must establish that the. alien will 
serve the national interest to a substantially greater degree than would an available­
United States worker having the same minimum qualifications. See id. at 217. To _ 
meet the third prong, the petitioner must show a past history of demonstrable 
achievement with some degree of influence on the field as a whole. /d. at 219, n.6. · 
• The petitioner's initial filing on April 11, 2011 included' counsel's statement that 
the petitioner seeks to "pursue work as a Domestic Violence Advocate." The 
record did not show that the petitioner had any employment experience in that 
occupation; her most recent employment had been as a market research analyst 
for Counsel contended that the petitioner had amassed "an 
extensive record of dedicated commitment and service to combatting domestic 
violence and violence against women" as a volunteer for organizations bas~d in 
the San Francisco Bay Area. 
• The initial submission included copies of witness. letters describing the 
petitioner's volunteer work, copies of- articles the petitioner wrote, and other 
evidence of her advocacy work. 
• On June 29, 2011, the director requested further evidence to show that the benefit 
from the petitioner's proposed employment will be national in scqpe, and to · 
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establish a past record of prior achievement that justified projections of future 
benefit to the national interest. In response, _counsel stated that the petitioner's 
"employment as a domestic violence advocate will involve educating the public 
across the country ab_out domestic violence and fighting for change on the 
·national level." The petitioner submitted additional evidence of local-level work. 
• The director denied the petition on November 1, 2011. The director 
acknowledged the intrinsic merit of advocacy for victims of abuse and 
trafficking, but found that the petitioner had not shown her influence on the field · 
or demonstrated any prospects for employment as an advocate. The petitioner . 
appealed the decision, submitting a 
brief from counsel. . 
• The AAO, in dismissing the appeal on 
August 30, 2012, stated: "The 
director, as 
counsel acknowledges, found that the petitioner had not shown how she will 
work as an advocate. Absent this crucial information, there can be no affirmative 
basis for a finding that the benefit from the petitioner's future work will be . 
national in scope." The AAO agreed with ·the director's observation that the 
petitioner's only demonstrated employment experience has been in marketing. 
The AAO determined that the petitioner's "vague intention to continue to pursue 
[her] cause ... cannot suffice to establish prospective national benefit." The 
: AAO acknowledged the submitted witness letters, but found that the evidence of 
record had not "meaningfully distinguished [the petitioner] from qualified 
workers in the field." 
• The AAO made a further finding that the petitioner had not established that her 
intended work as a domestic violence advocate constituted a profession, or that 
her advanced degree in marketing was relevant to advocacy work. 
A motion to reopen m1..1st state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or· other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must 
. state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish 
that the decision was based on an incorrect application of law or USCIS policy. A motion to 
reconsider a decision on an application or petition must, when filed, also establish that the decision was 
incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A 
motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5( a)( 4 ). 
A motion to reopen and/or reconsider is not simply another opportunity for the petitioner to claim 
eligibility for the benefit she seeks. The above regulations indicate that, to qualify as a proper 
motion, the new filing must show error in the previous deCision or establish new facts that warrant a 
reversal of the earlier finding. 
·On motion, the petitioner recounts her history of dealing with abuse, both as a victim (at home and 
in the workplace) and as an advocate. The. petitioner states that this five-page narrative constitutes 
her "motion to reconsider." A motion to reconsider, however, is not simply an attempt to persuade 
the AAO to change its past decision. Under the · regulation at 8 C.F.R. § 103.5(a)(3), a motion 
reconsider 
must establish that the decision was based on an ·incorrect application of law or USCIS 
policy, and that the decision was incorrect based on the evidence of record at the time of the initial 
decision. The petitioner's statement accomplishes neither of these requirements. Instead, she.explains 
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at length why she is passionate about her cause, and states tha.t, if necessary, she will write to the 
president and contact 'the media, Stating: "Yes, I am that desperate .... I will not stop until the violence 
stops.'' The AAO does not dispute the claims 
the petitioner makes in her statement, does not doubt her 
commitment to her cause, and does not deny that violence against women is a serious issue that 
continues to. dem~d action. The present proceeding, hpwever, is not a debate over whether or not 
such violence ought to be opposed. Rather, the petitioner has sought an inimigration benefit governed 
by laws, regulations and case law, and the AAO must base its decision within those parameters. The 
petitioner's statement on motion does not touch on the AAO's decision at all, much less demonstrate 
that it contained any errors of fact or law .. The petitioner's statement does not meet the requirements of 
a motion to reconsider. · 
The petitioner submits a second first-person statement on motion, recounting her activities in late 
2011 and early ~012. All of the activities described took place after the director denied the petition 
on November 1, 2011, and therefore they cannot establish that the decision was incorrect based on the 
evidence of record at the time of the initial decision. The AAO, like the director previously, did' not 
deny that the petitioner has been a committed activist against domestic violence and related fonns of 
abuse. Therefore, the submission of still more infonnation about her activism is not grounds for 
reconsideration. As required by the regulation at 8 C.P.R. § 103.5(a)(4), th~ AAO will dismiss the 
motion to reconsider because it does not meet the requirements of such a motion. 
As noted above, the regulation at 8 C.F.R. § 103.5(a)(2) requires that a motion to reopen must state 
the new facts tb be proved in the reopened proceeding and . be supported by affidavits or other. 
documentary evidence. Based on the plain meaning of "new," evidence that was previously available 
and which the petitioner could have been discovered or presented earlier in the proceeding does not 
establish "new facts."1 
At the same time, new fa~ts cannot cause a previously ineligible alien to beoome eligible for the benefit 
sought; they can only shed light on prior circumstances. An applicant or petitioner .must establish that 
· he or she is eligible for the requested benefit at the time of filing the benefit request. · 8 C.F.R. 
§ 103.2(b)(1). USCIS. cannot properly approve the petition at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 
(Reg'! Comm'r 1971). A petitioner may not make material changes to a petition that has already been 
filed in an effort to make an apparently deficient petition confonn to USCIS requirements. See Matter 
oflzummi, 22 I&N Dec. 169, 175 (Comm'r 1998). Thus, a motion to reopen is riot an opportunity for 
the petitioner to amass new credentials, experienCe, or other qualifying factors, and then attach them to 
a previously denied petition. 
USCIS disfavors motions for the reopening of immigration proceedings for the same reasons as 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. 
Doherty, 502 U.S. 314, 323' (1992)(citing INS v. Abudu, 48.5 U.S. 94 (1988)). A party seeking to 
reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U$. at 110. The filing of a motion to 
1 The relevant definitions of the word "new" are "1. having existed or been made for only a short time ... 3. Just discovered, 
found, or learned <new evidence> .... " Webster's 1/New College Dictionary 736 (2001)(emphasis in original). 
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reopen is not merely an opportunity for the petitioner to submit evidence that either should have been 
submitted earlier, or else has no bearing on the petitioner's eligibility as of the filing date. 
Copies of previously submitted letters are not new evidence. · Similarly, the petitioner submits a letter 
from president of the along with background . 
information about that organization. The letter is dated August 9, 2011, which is roughly 
contemporaneous with several previously submitted witness letters. The letter does not establish "new 
facts." The AAO notes that the letter discusses a 2011 production of which 
the AAO had already acknowledged in its dismissal notice. As such, the letter introduces adds no 
significant information to the record. 
When she filed the petition, the petitioner worked for as a market research 
analyst. Newly submitted documentation shows that in May, 2012, the U.S. Department of Labor 
found to be in violation of''the H-18 provisions of the INA" because it "failed to pay 
wages as required." Ah updated copy of the petitioner's resume indicated that the petitioner left 
in summer 2011 (no exact date specified). The petitioner stated that, since summer 2011, she 
has worked as an "Independent Social Worker/Certified Anti-Domestic Violence & Multi-Language 
Advocate." The record does not clarify the nature ofthis ·work . . The AAO, in its dismissal decision, 
. observed that all of the petitioner's past work as an advocate had been as a volunteer, and that the · 
petitioner had not claimed any of the required qualifications for employment as a social worker. The 
new submission on motion does not change or directly challenge those findings. 
Other materials, such as certificates and promotional fliers, concern the petitioner's most recent 
activities. As stated above, such materials show that the petitioner remains a committed activist, but do 
not address the stated grounds for the dismissal of the appeal Furthermore, because they cover late 
2011 and early 2012, they cannot show that the petitioner was eligible for the benefit sought as of the 
petition's April 2011 filing date. The AAO finds that the petitioner has .not submitted evidence of 
"new" facts that would warrant reopening the proceeding. the AAO will, therefore, dismiss the 
motion to reopen. · 
The petitioner's motion consists, essentially, of the petitioner's declaration that she intends to continue 
her advocacy work. The AAO does not oppose such efforts or hold that they are. against the national 
interest. Rather, the AAO will dismiss the motion because it fails to address fundamental aspects of 
. the AAO's dismissal decision. Specifically, the petitioner has not shown that she had ever been 
emp~oyed in an occupation relevant to her waiver request~ or that she had any evident prospects for 
such employment. The petitioner has also not demonstrated that, as a domestic violence advocate, she 
qualifies for classification as a member of the professions holding an advanced degree. The petitioner 
has submitted no new evidence showing that the AAO should have overturned the denial, and has not 
established any error of fact or law in the AAO's decision. The AAO will dismiss the motion. · . . 
ORDER: The motion is dismissed.