dismissed EB-2 NIW Case: Finance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JUL. 16, 2024 In Re: 31415514 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a financial manager, seeks employment-based second preference (EB-2) immigrant 
classification as either a member of the professions holding an advanced degree or an individual of 
exceptional ability. 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 
attached to this EB-2 immigrant classification. See section 203(b)(2)(B)(i) of the Act. U.S. 
Citizenship and Immigration Services (USCIS) may grant this discretionary waiver of the required job 
offer, and thus of a labor certification, when it is in the national interest to do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish that he qualifies for the national interest waiver. The Director dismissed a subsequently filed 
motion to reopen and reconsider. The matter is now before us on appeal pursuant to 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter ofChristo's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
The Petitioner seeks to provide financial consulting services as the Founder and Lead Financial 
Advisor of I I The Director denied the petition, concluding that the Petitioner 
qualified for EB-2 classification as a member of the professions holding an advanced degree, but he 
had not established that a waiver of the required job offer, and thus of the labor certification, would 
be in the national interest. The Petitioner filed a combined motion to reopen and motion to reconsider. 
The Director dismissed the motions, determining that the Petitioner's submissions did not meet the 
motion requirements. The matter is now before us on appeal. 
Where, as here, an appeal is filed in response to a director's unfavorable action on a motion, the scope 
of the appeal is limited to the director's decision on that motion. The regulatory provision at 8 C.F.R. 
§ 103.3(a)(2)(i) states: "The affected party must submit the complete appeal including any supporting 
brief as indicated in the applicable form instructions within 30 days after service of the decision." 
(Emphasis added). Thus, if the Petitioner wished to appeal the Director's decision to deny the petition, it 
should have elected to file that appeal within 30 days of the Director's denial decision. Here, though, the 
Petitioner elected to file a combined motion instead, thus limiting the scope of the appeal to the merits of 
the Director's decision to dismiss the motions. Our review and analysis in this matter, therefore, will 
focus on determining whether the Director's decision to dismiss the motions was correct. 
On appeal, the Petitioner doesn't address the merits of the November 3, 2023, decision dismissing the 
combined motion to reopen and motion to reconsider. Rather, the appeal focuses on the August 29, 
2023, denial of the petition, which is not the subject of the instant appeal and is not now before us. The 
only issue correctly before us on appeal is whether the immediate prior decision - that is, the Director's 
decision to dismiss the motion to reopen and motion to reconsider - was correctly decided. However, 
the Petitioner did not address that issue. Upon review, we concur with the Director's decision 
dismissing the motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We may grant motions that satisfy these requirements and demonstrate eligibility for 
the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that new 
evidence have the potential to change the outcome). A motion to reconsider must establish that our 
prior decision was based on an incorrect application oflaw 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). 
We may grant motions that satisfy these requirements and demonstrate eligibility for the requested 
benefit. 
The Director dismissed the Petitioner's motion to reopen, determining that the Petitioner did not 
submit new facts that were supported by affidavits and/or documentary evidence demonstrating 
eligibility at the time of filing of the underlying petition. 
On motion, the Petitioner submitted the following evidence: 
l. Expert Opinion Letter by Dr. _____I DBA, CPA froml I 
2. Expert Opinion Letter by IVice President Finance atl land 
3. Expert Opinion Letter by I I PresidentI IBookkeeping 
& CFO Services. 
After review of the brief submitted on motion and the accompanying documentation, we concur with 
the Director's determination. Although the Petitioner submitted additional evidence in support of the 
motion to reopen, the Petitioner has not established eligibility. Specifically, we note that the evidence 
submitted on motion reveals no fact that could be considered new under 8 C.F.R. 103.5(a)(2). 
The Director dismissed the motion to reconsider on the basis that it did not provide reasons for 
consideration that were supported by citations to appropriate statutes, regulations, or precedent 
decisions, and it did not show that the decision was incorrect based on the evidence of record at the 
time of the decision. Upon review of the Petitioner's submissions on motion, we agree that the motion 
did not satisfy the requirements of a motion to reconsider. On motion, the Petitioner asserted that the 
Director incorrectly relied on Matter of Caron International to dismiss evidence. USCTS may, in its 
discretion, use as advisory opinion statements from universities, professional organizations, or other 
sources submitted in evidence as expert testimony. See Matter ofCaron Int'l, 19 I&N Dec. 791, 795 
(Comm'r 1988). However, USCTS is ultimately responsible for making the final determination 
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regarding a foreign national's eligibility. The submission of letters from experts supporting the 
petition is not presumptive evidence of eligibility. Id., see also Matter ofD-R-, 25 I&N Dec. 445, 460 
n.13 (BIA 2011) ( discussing the varying weight that may be given expert testimony based on 
relevance, reliability, and the overall probative value). The Director reviewed the evidence on the 
record, including initial documentation submitted with the petition and subsequent documentation 
submitted in response to a request for evidence (RFE), and determined the record does not demonstrate 
a record of success sufficient to establish that the Petitioner is well positioned to advance his endeavor. 
On appeal, we note that the Petitioner submits a brief that generally reiterates his qualifications and 
contends that he has established that a waiver of the requirement of a job offer, and thus a labor 
certification, would be in the national interest. The Petitioner makes no assertion of error with regard 
to the Director's November 3, 2023, decision, which is the subject of this appeal. We will not 
re-adjudicate the petition anew and, therefore, the underlying petition remains denied. 
ORDER: The appeal is dismissed. 
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