dismissed EB-2 NIW Case: Economics

identifying data deleted to 
prevent clearly unw~ted 
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PUBLIC COpy 
DATE: AUG () S 20" OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 
FILE 
EAC 07 25552182 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien 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: 
SELF-REPRESENTED 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The Director, Texas 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, part of a Christian liberal arts college, seeks to classify the beneficiary pursuant to 
section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 US.c. § 1153(b)(2), as a member 
of the professions holding an advanced degree. The petitioner seeks to employ the beneficiary as a 
professor of economics. 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 beneficiary 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 agreed with the director's findings, and 
dismissed the appeal. 
The U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. § 103.5(a)(4) states that 
a motion that does not meet applicable requirements shall be dismissed. 
The AAO dismissed the appeal on March 26, 2010. The beneficiary signed Form I-290B, Notice of 
Appeal or Motion, and filed the motion on April 27, 2010. The beneficiary, however, is not an affected 
party with standing in this proceeding. See 8 C.F.R. § 103.3(a)(1)(iii)(B). The regulations at 8 C.F.R. 
§§ 103.5(a)(1)(i) and (iii)(A) state that only an affected party may file a motion. Because the 
beneficiary is not an affected party, the AAO cannot accept, and therefore must dismiss, the motion. 
In the alternative, the motion would not prevail on its merits. Section 203(b )(2)(A) of the Act makes 
immigrant visas "available . . . to qualified immigrants who are members of the professions holding 
advanced degrees ... and whose services in the sciences, arts, professions, or business are sought by an 
employer in the United States." Section 203(b )(2)(B)(i) of the Act permits a waiver of the job offer 
requirement if the government "deems it to be in the national interest." 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm'r 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must 
be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver 
must establish that the alien will serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications. 
The AAO, in its March 26,2010 decision, discussed the outcome of the petition: 
On February 26, 2009, the director notified the petitioner that the director would deny 
the petition unless the petitioner submitted evidence to meet the guidelines set forth in 
Matter o/New York State Dept. o/Transportation. In response, the petitioner ... made 
no effort to establish the beneficiary's eligibility for the waiver. In a new letter, [the 
petitioner's coordinator of faculty services] Carolyn Sanders stated: "we find that we 
checked the wrong box in our original petition," and that the beneficiary "is NOT 
seeking a National Interest Waiver" (emphasis in original) .... 
The director denied the petition on May 6, 2009, stating the petitioner "failed to submit 
any of the information we requested." The director found "there is no evidence 
whatsoever that suggests the beneficiary warrants a waiver of the labor certification 
requirement in the national interest." 
On appeal, the petitioner repeats the claim that "we had checked the wrong box in our 
original petition" and that the beneficiary "is not seeking a National Interest Waiver." 
The petitioner indicates that the petitioner had intended to seek to classifY the 
beneficiary as a member of the professions holding an advanced degree, but not with a 
national interest waiver. ... 
While the petitioner, on appeal, contends that it had applied for the waiver essentially by 
mistake, the petitioner also attempts to address the guidelines in Matter of New York 
State Dept. of Transportation. The petitioner submits documentation of the 
beneficiary's participation in professional conferences and other evidence of his 
continuing work in his field. The petitioner, however, had already forfeited its 
opportunity to submit evidence in support ofthe waiver claim. 
The director had specifically informed the petitioner of the deficiencies in the record in 
the February 26, 2009 notice discussed earlier. At that time, the petitioner could have 
submitted materials to support the waiver claim. Instead, however, the petitioner chose 
to effectively abandon the waiver claim by asserting that the beneficiary "is NOT 
seeking a National Interest Waiver." The ... director informed the petitioner that the 
petition would be denied without evidence of the beneficiary'S eligibility for the waiver, 
and that the petitioner declined to submit such evidence at that time. 
The regulation states that the petitioner shall submit additional evidence as the 
director, in his or her discretion, may deem necessary. The purpose of the request for 
evidence is to elicit further information that clarifies whether eligibility for the benefit 
sought has been established, as of the time the petition is filed. See 8 C.F .R. 
§§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ 103.2(b)(14). 
Where, as here, a petitioner has been put on notice of a deficiency in the evidence and 
has been given an opportunity to respond to that deficiency, the AAO will not accept 
evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 
764, 766 (BIA 1988); see also Matter of Obaigbena, 19 I&N Dec. 533, 537 (BIA 
1988). If the petitioner had wanted the submitted evidence to be considered, it should 
have submitted the documents in response to the director's request for evidence. Id. 
Page 4 
Under the circumstances, the AAO need not and does not consider the sufficiency of 
the evidence submitted on appeal. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 c.P.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.P.R. § 103.5(a)(3). 
On motion, the beneficiary states no new facts and submits no affidavits or documentary evidence. 
Also, the beneficiary does not address any of the procedural issues cited by the AAO. The beneficiary 
does not establish that the AAO based its 2010 dismissal decision on an incorrect application of law or 
USCIS policy. Instead, the beneficiary simply argues that he meets the national interest test set forth in 
Matter a/New York State Dept. a/Transportation. The beneficiary'S attempt to make a straight case for 
eligibility, well after the petitioner abandoned its attempts to do so, would not be a viable basis for a 
motion to reopen or reconsider even if the petitioner, rather than the beneficiary, had properly filed the 
motion. The AAO, therefore, would dismiss the motion on this ground if an affected party had filed it. 
The AAO will dismiss the motion for the above stated reasons, with each considered as an 
independent and alternative basis for dismissal. 
ORDER: The motion is dismissed.