dismissed EB-2 NIW Case: Finance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 08, 2024 In Re: 29480525 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a financial manager, seeks second preference immigrant classification, as well as a 
national interest waiver of the job offer requirement attached to this EB-2 immigrant 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 did not 
establish that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. We dismissed a subsequent appeal, concluding that the record did not satisfy the 
first Dhanasar prong, and reserved our opinion on the second and third Dhanasar prongs. See Matter 
ofDhanasar, 26 I&N Dec. 884 (AAO 2016). The matter is now before us on combined motions to 
reopen and reconsider. 1 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&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. 
Our previous decision, incorporated herein by reference, identified and evaluated the Petitioner's 
specific proposed endeavor of continuing his career as a financial manager and consultant and 
determined that the evidence on record does not sufficiently show that the proposed endeavor activities 
would create national or global implications in the field, extending beyond the businesses that would 
employ his services. We also determined that the record does not support the Petitioner's claims of 
substantial economic effects to the U.S. regional or national economy through job creation or tax 
1 We note that an attorney attempted to file a Form G-28, Notice of Entry of Appearance as Attorney or Accredited 
Representative , in this case. However, as the form was improperly filed, we consider the Petitioner self-represented . 
8 C.F.R. § 292.4(a) 
revenues directly attributable to his future endeavor. On this combined motion, the Petitioner 
disagrees with our previous conclusion that the record did not show the national importance of his 
proposed endeavor. However, we find that the submission of new evidence does not establish the 
Petitioner's eligibility for a national interest waiver and the Petitioner has not demonstrated that we 
misapplied law or USCIS policy, and that our prior decision was incorrect based on the evidence in 
the record at the decision, as discussed below. 
On motion to reopen, the Petitioner claims that the Biden administration's initiative on small business 
industry elevates his endeavor to the level of national importance and submits a one-page article from 
the Small Business Administration (SBA) dated January 30, 2019, entitled "Small Businesses 
Generate 44 Percent of U.S. Economic Activity." The article states that "[ s ]mall businesses are the 
lifeblood of the U.S. economy" and references a full report, "Small Business GDP, 1998-2014," and 
a summary of the research regarding contribution and value of small businesses to the U.S. economy 
since 2018. 
Although we recognize that small businesses contribute to the growth of economy in general, merely 
working in an important field is insufficient to establish the national importance of the proposed 
endeavor. Instead, we focus on the "the specific endeavor that the foreign national proposes to 
undertake." See Dhanasar, 26 I&N Dec. at 889. Here, the SBA article does not discuss any details 
relating to the Petitioner's specific endeavor and its impact other than that his endeavor is in the field 
of assisting small businesses. Aside from this article, the Petitioner has not introduced any other new 
evidence, or a new fact supported by documentary evidence to establish national importance of his 
endeavor. 2 Therefore, we will dismiss the motion to reopen. 
The Petitioner also claims that the Director "did not give full consideration to the evidence provided 
by the Petitioner along with the first filing and the RFE response, as it should have been given" and 
as such, it violated "the Fourth Amendment of the Constitution of the United States of America as 
Petitioner provided timely and proper notice to his RFE response to the USCIS." However, we cannot 
address arguments on the constitutionality of laws enacted by Congress or on regulations. See, e.g., 
Matter of C-, 20 I&N Dec. 529, 532 (BIA 1992) (holding that the Immigration Judge and Board of 
Immigration Appeals lacked jurisdiction to rule upon the constitutionality of the Act and its 
implementing regulations); Matter of Hernandez-Puente, 20 I&N Dec. 335, 339 (BIA 1991) ("It is 
well settled that it is not within the province of this Board to pass on the validity of the statutes and 
regulations we administer.") ( citations omitted). 
Furthermore, our review on motion is limited to reviewing our latest decision and the filing before us 
is not a motion to reconsider the denial of the petition. 8 C.F.R. § 103.5(a)(l)(ii). In other words, we 
examine any new arguments to the extent that they pertain to our prior dismissal of the Petitioner's 
motion. Therefore, we cannot consider new objections to the earlier denial, and the Petitioner cannot 
use the present filing to make new allegations of error at prior stages of the proceeding. 
D,
2 The Petitioner fmther submitted a reference letter from I I a chief financial officer of~-----~
but as the Petitioner stated, this reference letter "illustrates progress towards achieving the proposed endeavor" and 
supports the second prong of Dhanasar, whether the Petitioner is well-positioned to advance the proposed endeavor, not 
whether the endeavor is of national importance under the first prong of Dhanasar. 
2 
We also note that the Director considered the evidence submitted with the RFE response, such as the 
Petitioner's "Definitive Statement" and his business plan, which were not part of the initial filing. The 
Director's denial letter analyzed the facts in the Petitioner's "Definitive Statement" and the business 
plan before concluding that the evidence does not establish that his endeavor "has implications beyond 
the proposed business and its business partners, alliances, and/or clients or customers to impact the 
industry or field more broadly." Therefore, the Petitioner had the notice and opportunity to address 
insufficiencies in the record and the Director properly considered the evidence in totality, including 
the documents submitted with the RFE response. 
Additionally, the Petitioner contests the correctness of our prior decision by asserting that we did not 
"given an opinion on the second and third prongs of the National Interest Waiver." With this claim, 
the Petitioner has not offered any new fact or evidence, so we will consider this claim as a motion to 
reconsider. 
As we previously concluded that the Petitioner did not satisfy the first prong of the Dhanasar, he is 
not eligible for a national interest waiver as a matter of discretion and the remaining arguments 
concerning the eligibilities under second and third prongs of Dhanasar need not be discussed. See 
INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings 
on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 
26 I&N Dec. 516,526 n.7 (BIA 2015) (declining to reach alternative issues on appeal where an 
applicant is otherwise ineligible). On motion, the Petitioner does not rely on any precedent law, 
regulations, or policy to support his claim that we must provide analysis on all three prongs of 
Dhanasar on appeal. Moreover, the Petitioner was given the opportunity to provide additional 
documentation and arguments regarding these remaining prongs when the Director issued the RFE. 
Therefore, we will dismiss the motion to reconsider. 
Finally, the Petitioner asks to "consider the matter of the Petitioner's eligibility for classification as an 
Advanced Degree Professional" and resubmits the work experience letter from his previously 
employer,! I However, aside from this request to reconsider our prior decision on this issue, 
the Petitioner does not make any substantive arguments as to how the Petitioner qualifies as an 
advanced degree professional or how our prior decision erred as a matter of law or policy. Therefore, 
we will also dismiss this claim as it does not meet the requirements of a motion to reconsider. 
Based on the foregoing, we conclude that the Petitioner's submission of additional evidence in support 
of the motion to reopen does not establish eligibility. 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 combined motion will be dismissed. 8 C.F.R. 
§ 103.5(a)(4). We affirm our prior conclusion that the Petitioner has not established eligibility for, or 
otherwise merits, a national interest waiver. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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