dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
MATTER OF J-R-P-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 5, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an elementary special education teacher, seeks classification as a member of the 
professions holding an advanced degree. See section 203(b)(2) ofthe Immigration and Nationality Act 
(the Act). 8 U.S.C. section 1153(b)(2). She also seeks a national interest waiver of the job otter 
requirement that is normally attached to this EB-2 immigrant classification. See section 203(b)(2)(8)(i) 
ofthe Act, 8 U.S.C. section 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, Texas Service Center. denied the petition. The Director found that the Petitioner 
qualifies for classification as a member of the professions holding an advanced degree. but that she 
did not establish that a waiver of a job offer would be in the national interest. We atTirmed this 
finding on appeal and in decisions on five subsequent motion filings by the Petitioner. 
The matter is now before us on the Petitioner's sixth motion, a motion to reconsider. On motion. the 
Petitioner submits letters from herself and the principal of the school where she works. as \Veil as 
copies of previously submitted documents. She contends that the record demonstrates her eligibility 
for the benefit sought. She also asks USCIS to reconsider the denial of her petition taking into 
account her personal circumstances. W c will deny the motion. 
I. LAW 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions or legal citations 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 ofthe initial decision. 8 C.F.R. § 103.5(a)(3). 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate his or her 
qualification for the underlying visa classification, as either an advanced degree professional or an 
individual of exceptional ability in the sciences arts or business. Because this classification normally 
requires that the individuars services be sought by a U.S. employer, a separate showing is required 
(b)(6)
Matter of J-R-P-
to establish that a waiver of the job offer requirement is in the national interest. See section 203(b )(2) 
of the Act, 8 U.S.C. section 1153(b)(2) 
Neither the Act nor the pertinent regulations define the term •·national interest." However, Matter l~{ 
Nelv York State Department of Transportation. 22 I&N Dec. 215,217-18 (Act. Assoc. Comm'r 
1998) (NYSDOT), set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must demonstrate that he or she seeks employment in an 
area of substantial intrinsic merit. !d. at 217. Next, a petitioner must show that the proposed benefit 
will be national in scope. !d. Finally, the petitioner seeking the waiver must establish that he or she 
will serve the national interest to a substantially greater degree than would an available U.S. worker 
having the same minimum qualifications. !d. at 217-18. 
II. ANALYSIS 
In our previous decisions affirming the denial of the Form 1-140. Immigrant Petition for Alien 
Worker, we found that the Petitioner demonstrated her eligibility as an advanced degree 
professional, but did not establish that a waiver of the job offer requirement is in the national 
interest. Specifically, we found that she had not established that the benefits of her proposed work 
as a teacher are national in scope as required under the second prong of the NYS'DOT national 
interest waiver analysis, or that her past record of achievement is sufficient to meet the third prong. 
On motion, the Petitioner resubmits documents already in the record and contends that they 
demonstrate her eligibility for a national interest waiver. In addition, she provides a letter from 
principal of the in . Maryland, who 
attests to the Petitioner's expertise, dedication, and her value to the school. The Petitioner does not 
however, explain how our previous findings under NYSDOT had legal errors or misstatements of fact 
that would warrant reconsideration. 
As in her previous motions, the Petitioner also describes her personal circumstances and the 
hardships that she and her family would face if she had to leave the country. While we acknowledge 
the Petitioner's situation, we do not have the discretion to disregard either the regulatory 
requirements for a motion to reconsider set forth at 8 C.F.R. § 103.5(a)(3), or the eligibility 
requirements for a national interest waiver set forth in the NYSDOT precedent decision. See 8 C .F. R. 
§ 103 .3( c), which indicates that precedent decisions are binding on all USC IS officers. As noted in 
our previous decisions, humanitarian concerns cannot establish eligibility for this employment-based 
immigration benefit. 
In addition, we note that the Petitioner asserts in her cover letter that she '·was misrepresented and 
experienced fraud" in interactions with attorneys who previously represented her. Any appeal or 
motion based upon a claim of ineffective assistance of counsel requires: (1) that the claim be 
supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement 
that was entered into with counsel with respect to the actions to be taken and what representations 
counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or 
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Matter of J-R-P-
competence is being impugned be informed of the allegations leveled against him and be given an 
opportunity to respond, and (3) that the appeal or motion reflect whether a complaint has been filed 
with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal 
responsibilities, and if not, why not. lVfatter o.lLozada, 19 I&N Dec. 637 (BIA 1988), c!ffd, 857 F.2d 
10 (1st Cir. 1988 ). The Petitioner has not indicated that she is claiming ineffective assistance of 
counsel in the instant motion to reconsider, nor has she submitted the required documentation. 
III. CONCLUSION 
According to 8 C.F.R. § 103.5(a)(3), 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 policy. The Petitioner in this case has not 
established through pertinent legal authority that our previous findings regarding her eligibility were 
erroneous. Accordingly, the motion will be denied. In visa petition proceedings, it is the 
Petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the 
Act. 8 U.S.C. § 1361; Matter o.lOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, the Petitioner 
has not met that burden. 
ORDER: The motion to reconsider is denied. 
Cite as Matter o.lJ-R-P-, ID# 17351 (AAO May 5, 2016) 
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