dismissed EB-2 NIW Case: Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 23, 2024 In Re: 33670539 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a general and operations manager, 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 Texas Service Center denied the petition, concluding that the record establishes 
that the Petitioner qualifies for the EB-2 classification, but not for a national interest waiver as a matter 
of discretion. We dismissed a subsequent appeal. The matter is now before us on combined motions 
to reopen and 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 reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). 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. See Matter ofCoelho, 20 I&N Dec. 
464,473 (BIA 1992) (requiring that new evidence have the potential to change the outcome). 
The Petitioner indicates on the Form 1-290B, Notice of Appeal or Motion, that his submission is both 
a motion to reopen and a motion to reconsider. The Petitioner also submits a brief that refers to the 
submission as "the Motion to Reopen and Reconsider." However, the Petitioner does not identify a 
new fact, nor does he submit documentary evidence of such a fact in support of the motion to reopen. 
Because the submission does not identify a new fact, and it is not supported by documentary evidence 
of such a fact, it does not satisfy the requirements of a motion to reopen. See 8 C.F.R. § 103.5(a)(2). 
Therefore, the motion to reopen will be dismissed. 8 C.F.R. § 103.5(a)(4). 
Next, in support of the Petitioner's motion to reconsider, the Petitioner contests the correctness of our 
prior decision, stating there was a, "misunderstanding of the critical elements surrounding the 
Petitioner's proposed endeavor ... a heavy equipment rental service, and the significant contributions 
this venture is projected to make within the construction and disaster recovery sectors." However, the 
Petitioner's original proposed endeavor was to "continue working as General and Operations 
Professional in Engineering to advise U.S. companies on how to properly plan, direct, and coordinate 
operations of public or private sector organizations." As we concluded in our appellate decision, the 
initial filing made no mention of this business, for which documentation was submitted in response to 
the request for evidence (RFE). This was a material change to the original endeavor. A petitioner 
may not make material changes to a petition that has already been filed in an effort to make a deficient 
petition conform to USCIS requirements. Matter ofIzummi, 22 I&N Dec. 169, 175 (Assoc. Comm'r 
1998). Therefore, as we addressed in the appellate decision, the proposed endeavor was reviewed as 
originally submitted, for a general and operations professional in engineering. 
The Petitioner asks for reconsideration of the decision but does not identify how any law or policy 
was incorrectly applied. They do not address our determination, that the RFE included a material 
change to the proposed endeavor; but continue to assert that his company meets the standard for 
national importance. The Petitioner bears the burden to demonstrate eligibility or, in this case, 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); see also 8 C.F.R. § 103.5(a)(l)(ii); Matter ofChawathe, 25 I&N Dec. at 375-76. The 
Petitioner has not established that our previous decision was based on an incorrect application of law 
or policy at the time we issued our decision. Therefore, the motion will be dismissed. 8 C.F.R. 
§ 103.5(a)(4). 
The Petitioner did not identify any new facts, or submit any additional documentary evidence of such 
facts, and therefore, the Petitioner has not established eligibility for a motion to reopen. On motion to 
reconsider, the Petitioner has not established that our previous decision was based on an incorrect 
application of law or policy at the time we issued our decision. Therefore, the motion will be 
dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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