dismissed EB-2 NIW Case: Entrepreneurship

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-D-P-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: APR. 27,2018 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: fORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an entrepreneur, seeks classification as a member of the professions holding an 
advanced degree or as an individual of exceptional ability. See Immigration and Nationality Act (the 
Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). The Petitioner also seeks a national interest waiver of 
the job offer requirement that is normally attached to this immigrant classification. See 
§ 203(b)(2)(B)(i) of the Act. 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration 
Services (USC IS) may grant this discretionary waiver of the required job otTer, and thus of a labor 
certification. when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify as a member of the professions holding an advanced degree, and that he had not established 
that a waiver of a job offer requirement would be in the national interest. We dismissed the 
Petitioner's appeal and a subsequent combined motion to reopen and reconsider, finding that he did 
not qualify for classification as either an advanced degree professional or an individual of 
extraordinary ability, and was therefore not eligible for a national interest waiver, 
1 
The matter is now before us on a combined motion to reopen and reconsider, On motion, the 
Petitioner submits a brief stating that he is providing new facts to establish eligibility as an individual of 
exceptional ability and that our previous motion decision was incorrect based on the previous record. 
Upon review, we will deny both motions. 
I. LAW 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen arc 
located at 8 C.F.R. § I 03.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.F.R. § I 03.5(a)(3). 
1 1 Our most recent decision in this matter is Maller of D-D-P- I 0# 75530 I (AAO September 22, 20 17). 
Maller ofD-D-P-
To establish eligibility for a national interest waiver, a petitioner must first demonstrate 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 individual's services be sought by a U.S. employer, a separate showing is required to establish 
that a waiver of the job otTer requirement is in the national interest. See section 203(b)(2) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," we recently 
set forth a new framework tor adjudicating national interest waiver petitions. See Dhanasar, 26 l&N 
Dec. 884 2 
II. ANALYSIS 
In denying the Petitioner's previous motion, we tound that he did not establish he meets any of the six 
regulatory criteria at 8 C.F.R. ~ 204.5(k)(3)(ii) or has achieved the level of expertise required for 
exceptional ability classification. The Petitioner filed the current combined motion to reopen and 
reconsider contending that our previous motion decision was erroneous and again asserting that that 
he meets five of the six evidentiary requirements of 8 C.F.R. § 204.5(k)(3)(ii)(B-F). He claims that 
our previous decision did not consider all documentary evidence and he provides additional 
documentation in support of his eligibility. 
A. Motion to Reconsider 
In support of his motion to reconsider, the Petitioner asserts that "certain documentary evidence 
provided were [sic] not taken into consideration." However, he does not specifically identify 
documents that we overlooked. Instead, he generally argues that the evidence previously in the 
record establishes his eligibility. Our prior decisions thoroughly discussed that evidence and we find 
no error in our previous analyses. Further, the Petitioner does not offer pertinent precedent decisions 
or legal citations that demonstrate our latest decision was based on an incorrect application of law or 
USC IS policy 3 Accordingly, the Petitioner has not met the requirements of a motion to reconsider. 
B. Motion to Reopen 
In his motion to reopen, the Petitioner provides additional evidence and information relating to the 
criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B-F). For the reasons discussed below, the new evidence docs 
not overcome our previous findings or demonstrate eligibility for the claimed criteria. 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of NeH' York Stale Department of 
Transponation, 22 I&N Dec. 215 (Act. Assoc. Comm"r 1998) (NYSD07). 
3 A motion to reconsider must be supported by a pertinent precedent or adopted decision, statutory or regulatory 
provision, or statement of U.S. Citizenship and Immigration Services (USCIS) or Department of Homeland Security 
policy. 
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Maller ofD-D-P-
t 
Eviden ce in the form t?f'leller(.<\) fi·om current or .fimner employerM showing that the 
alien has ar least ten years (~f/illl-time experience in the occupation for ·which he o r she 
is being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B) 
In our previous motion, we noted that the record does not include letters from prior employers attesting 
to the Petitioner's experience in the field as required by this criterion. With this motion, the Petitioner 
offers a letter from the Executive Director of who states that 
the Petitioner is the managing director of the organization. She writes that he has "been in full time 
operation in the US and also abroad since the last 10 years and more noting the U.S. subsidiary was just 
registered in 20 16." Her statements contradict the Petitioner's resume and Form 9098 which indicates 
that he was employed by from February 2014 until March 2015, a little over 
one year. The Petitioner must resolve inconsistencies in the record with independent, objective 
evidence pointing to where the truth lies. Maller q{ flo, 19 I&N Dec. 582, 591-92 (BIA 1988). 
Unresolved material inconsistencies may lead us to reevaluate the reliability and sufficiency of other 
evidence submitted in support of the requested immigration benefit. !d. Here, the Petitioner has not 
resolved these inconsistencies. 
Also on motion, the Petitioner provides a letter from managing partner of a chartered 
accountancy, states that his company has worked with the 
Petitioner "for many years" on projects such as the project in 
Nigeria, to ·develop solar powered fingerprinting in Nigeria, and the 
projects for erosion control and shoreline protection. While 
letter is complimentary of the Petitioner's work, he is not his employer and his statement does not 
sufliciently establish that the Petitioner has at least ten years of full-time experience in the occupation 
for which he is being sought, as required. 
A license to practice the profession or cert(ficalion for a particular prr?fession or 
occupation. 8 C.F.R. § 204.5(k)(3)(ii)(C). 
In this motion, the Petitioner again claims that he meets this criterion based upon his licensure as a 
salesman from the Maryland Home Improvement Commission. He provides excerpts from the 
Maryland licensing authority indicating that the Maryland ·Home Improvement Commission holds the 
power within the state for regulating "green" home improvement projects including installation of solar 
paneling. As explained in our previous decision, the Petitioner is seeking eligibility as an individual of 
exceptional ability based upon his experience as an entrepreneur. He has not shown that a license to sell 
home improvement services relates to his stated profession. In his motion, he also claims to meet this 
criterion through his membership in the and several business 
registrations vvith the taxing authority in Nigeria or the Internal Revenue Service in the United States. 
However, business registrations do not qualify as either a license to practice his profession or a 
certilication for a particular profession or occupation. As such, the submitted evidence does not 
demonstrate the Petitioner's eligibility for this criterion. 
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Maller of D-D-P-
Evidence that the alien has commanded a salary. or other remuneration for services. 
which demonstrates excefJtional ability. 8 C.F.R. § 204.5(k)(3)(ii)(D). 
In this current motion, the Petitioner provides a copy of a procur ement notice issued by the 
in Nigeria awarding a contract to construct 
electricity infrastructure in rural areas; a copy of the 20 I 3 bank statements for 
and a contract between and the 
However, as we noted previously , the project. earning s to not constitute the Petitioner's 
salary nor do the doc ument s indicate that the Petition er received perso nal remuneration for his services. 
As such, the newly submitted evidence does not overcome our previous finding or establish the 
Petitioner 's eligibilit y for this regulatory criterion . 
Evidence (~(membership in professional associations. 8 C.F.R. § 204 .5(k)(3)(ii)(E). 
We previously dete nnined that .the Petitioner did not meet this criterion. On motion , the Petitioner 
states that "there is no professional body directly responsible for entrepreneurs in the sola r and 
renewable energy business other than you having the criteria capacity (sic] to qualifY for a project and 
execute them which is why they ask for experience in a similar field." We note that there is no 
requirement that the Petition er spec ifically meet this criterion; rather, the regula tions include six c riteria 
from which a petitioner must meet at least three. As the Petitioner has not established his membe rship 
in a profes sional association , we affirm our previous finding that he does not meet the regulatory 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). 
Evidence <?{recognition/or achievements and sign[ficant contribwions to the industry 
or .field hy peers. governmental entities, or prqfess ional or husines s organization s. 
8 C.F.R. * 204.5(k)(3)(ii)(F). 
In our appellate d~cision and the subsequ ent motion we found that the Petitioner has not provided letters 
or testimon y fi·om interested parties attesting to his achievemen ts or significan t contributi ons. With the 
instant motion , the Petitioner point s to the letter tram While states that 
his company has provided consu lting and finance support to the Petitioner 's projects, and he lists 
several of the Petitioner's busine ss ventures, his statement doe s not con stitute evidence of recogn ition 
for achiev emen ts and significant contributions to the industry or field by peers, governmental 
entities , or professional or business organizations. As such, the Petitioner has not established that he 
meets this regulatory criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F). 
Ill. CONCLUSION 
In this matter, the motion to recon sider does not estab lish that our previous find ings were based on 
an incorr ect application of the la\v, regulation, or USCIS policy , nor docs the motion demonstrate 
that our latest decision was erroneous based on the ev idence before us at the time of the decision. In 
addition, the evidence provided in support of the motion to reopen does not overcome the grounds 
4 
Muller of D-D-1'-
underlying our previous decision or establish eligibility for the benefit sought. Therefore, the 
motions are denied. 
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is denied. 
Cite as Marrero(D-P-1'-, ID# 1092319 (AAO Apr. 27, 2018) 
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