dismissed EB-2 NIW Case: Education

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 6, 2025 In Re: 35585989 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an English as a second language teacher, seeks employment-based second preference 
(EB-2) 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 classification. See 
Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding the Petitioner did not 
establish the Petitioner qualified for the underlying visa classification, nor that a waiver of the required 
job offer, and thus of the labor certification, would be in the national interest. Specifically, the Director 
found the Petitioner did not demonstrate his proposed endeavor has substantial merit and national 
importance; he is well-positioned to advance the endeavor; or that, on balance, it would be beneficial 
to the United States to waive the requirements of a job offer and thus of a labor certification. We 
dismissed a subsequent appeal, concurring with the Director that the Petitioner had not demonstrated 
the national importance of his proposed endeavor and reserving our opinion as to whether the record 
establishes the remaining requirements of the analytical framework of Matter ofDhanasar, 26 I&N 
Dec. 884 (AAO 2016). We dismissed a subsequent motion to reconsider, finding the Petitioner did 
not demonstrate we erroneously applied law or policy in dismissing his appeal. The matter is now 
before us on a second motion to reconsider. 
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. 
A motion to reconsider must establish that our prior 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). Our review on motion is limited to reviewing our 
latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
On motion, the Petitioner contests the correctness of our prior decision. In support of the motion, the 
Petitioner relies on the Supreme Court's decision in Loper Bright Enterprises v. Raimondo, 144 S.Ct. 
2244 (2024), in asserting Dhanasar is no longer controlling precedent. However, Loper overturned 
Chevron USA v. Natural Resources Defense Council, 467 U.S. 837 (1984), in holding that federal 
courts do not need to defer to agencies' reasonable interpretations of ambiguous federal laws. While 
Loper impacts federal courts that review our interpretation of ambiguous statutes, it does not modify 
our own adjudication of immigrant petitions and related national interest waivers. 
The Petitioner also asserts our decision was contrary to the Administrative Procedures Act (APA). 
Citing to 5 USC Section 706, the Petitioner claims "USCIS' decision through the Administrative 
Appeals Office" is arbitrary and capricious; in excess of statutory jurisdiction, authority, or limitations, 
or short of statutory right; or "unwarranted by the facts to the extent that the facts are subject to review 
to trial de novo by the reviewing court." The Petitioner does not clarify whether he believes our prior 
decision on appeal or on motion to be contrary to the AP A. However, he does refer to the Director's 
petition denial and our dismissal of his appeal in asserting we "arbitrar[ily] and capricious[ly ]" 
"misapplied Dhanasar." As stated, our review on motion is limited to reviewing our latest decision. 
The scope of a motion is limited to "the prior decision" and "the latest decision in the proceeding." 
8 C.F.R. § 103.5(a)(l )(i), (ii). And the Petitioner's arguments related to the Director's decision and 
our dismissal of his appeal do not constitute the latest decision in the proceeding. Similarly, on 
previous motion, we properly considered only the correctness of our appeal decision, rather than 
considering the original petition evidence submission de novo as we did on appeal. The Petitioner's 
additional contentions on current motion reargue facts and issues we have already considered in our 
previous decisions. See e.g., Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) ("a motion to 
reconsider is not a process by which a party may submit, in essence, the same brief presented on appeal 
and seek reconsideration by generally alleging error in the prior Board decision"). We will not 
re-adjudicate the petition anew. 
As the Petitioner has not established that we erroneously applied law or policy in dismissing his 
previous motion to reconsider, he has not established this motion satisfies the requirement for a motion 
to reconsider under the regulations. 
ORDER: The motion to reconsider is dismissed. 
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