dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
In Re: 24782976 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 2, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner , an education specialist, seeks second preference immigrant classification as a member 
of the professions holding an advanced degree, as well as a national interest waiver of the job offer 
requirement attached to this EB-2 classification . See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2). 
The Director of the Texas Service Center revoked the approval of the petition, concluding that the 
Petitioner had not established that a waiver of the required job offer, and thus of the labor certification , 
would be in the national interest. In addition, the Director determined that the Petitioner willfully 
misrepresented material facts in support of her petition . We dismissed her appeal and subsequent 
combined motion to reopen and motion to reconsider. The matter is before us again on a 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. 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits U.S. Citizenship and Immigration Services' (USCIS) 
authority to reopen to instances where an applicant has shown "proper cause" for that action. Thus, 
to merit reopening or reconsideration , an applicant must not only meet the formal filing requirements 
at 8 C.F.R. § 103.5(a)(l)(iii) (such as submission of a properly completed and signed Form 1-290B, 
Notice of Appeal or Motion, with the correct fee), but also show proper cause for granting the 
motion. Specifically , a motion to reopen must state new facts and be supported by documentary 
evidence. 8 C.F.R. § 103.5(a)(2). 
At the outset, the Petitioner concedes that she is not eligible for a national interest waiver and filed 
this motion to reopen for the purpose of disputing the willful material misrepresentation determination . 
Accordingly, our decision will be limited to only addressing the willful material misrepresentation 
issue. 
In summarizing our most recent decision dismissing her motion to reconsider , we determined that the 
Petitioner did not show that our prior decision dismissing her appeal contained errors oflaw or policy, 
or that the decision was incorrect based on the record at the time of the decision. As such, the Petitioner 
did not demonstrate that she met the requirements of a motion to reconsider at 8 C.F.R. 
§ 103.5(a)(3). As it relates to our decision dismissing her motion to reopen, we concluded that our 
previous decision thoroughly examined the record and provided explanations of why her evidence did 
not overcome the Director 's findings. Although the Petitioner provided documents that purport to 
clarify her professional work history and experience, as well as explain the misrepresentation , the 
Petitioner previously had ample opportunity to correct any deficiencies in the record by her response 
to the notice of intent to revoke (NOIR) and on appeal. The Petitioner elected not to address the 
Director 's concerns about misrepresentation in her NOIR response. The motion evidence she 
submitted in attempt to cure the deficiencies could not be considered new, as it involved matters 
already considered and adjudicated . Accordingly , the Petitioner did show proper cause for reopening 
the proceedings under 8 C.F.R. § 103.5(a)(2). 
In the current motion to reopen, the Petitioner continues to assert that her misrepresentations were 
"due to precisely the wrong help" and submits "emails, text messages ... , and certified transcripts of 
two phone calls." The issue here is whether the Petitioner has submitted new facts, supported by 
documentary evidence, to warrant reopening. And the matters the Petitioner must first overcome 
within this motion are limited to the issues discussed within our most recent decision; the dismissal of 
the motion to reconsider and the motion to reopen. General support that a motion must first overcome 
the most recent decision lies within the regulation at 8 C.F.R. § 103.5(a)(l)-(3) where it repeatedly 
discusses the underlying or latest decision, it limits the time one has to file a motion after the most 
recent decision, and it references jurisdiction resting with the entity who made the latest decision. This 
demonstrates that any motion must first address and overcome the most recent adverse decision before 
the filing party's arguments may move on to any issue that arose in a previous petition, appeal, or 
motion filing. 
In this case, the Petitioner has not provided new facts in order to warrant reopening. Instead, the 
Petitioner makes the same assertions that she made when she filed her previous combined motion 
filing. Specifically, the Petitioner continues to claim that the agency who assisted her with the petition 
made the inconsistencies and misrepresentations in her documents. Because the Petitioner raised these 
claims, which we thoroughly addressed, in her previous combined motion, these same arguments do 
not constitute new facts as required under 8 C.F.R. § 103.5(a)(2), regardless of the submission of 
additional evidence. 1 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause to reopen this proceeding. 
Therefore, the motion to reopen will be dismissed for the above stated reasons. 
ORDER: The motion to reopen is dismissed . 
1 Again, the Petitioner had opportunitie s to make these arguments and submit the evidence in response to the Director 's 
NOIR and on appeal. 
2