dismissed EB-2 NIW Case: General And Operations

U.S. Citizenship 
and Immigration 
Services 
In Re: 20570853 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAY 31, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a general and operations professional, seeks second preference 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 EB-2 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 that the Petitioner 
qualified for classification as a member of the professions holding an advanced degree but that the 
Petitioner had not established that a waiveroftherequiredjob offer, and thus of the labor certification, 
would be in the national interest. We dismissed a subsequent appeal, concluding that the Petitioner 
had not established that the proposed endeavor has national importance, reserving other eligibility 
criteria issues. The matter is before us again on a combined motion to reopen and a motion to 
reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the combined motion. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence . 8 C.F.R 
§ 103.5(a)(2). We do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable. Instead, "new facts" are facts that are relevant to the issue(s) raised on motion and 
that have not been previously submitted in the proceeding, which includes the original application. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
A motion to reconsider must establish that our 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). We do not consider new facts or evidence in a motion 
to reconsider. 
II. ANALYSIS 
As noted above, although we found that the proposed endeavor has substantial merit, we found that 
the record did not establish that the proposed endeavor has national importance, as required by the 
first prong of Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 
Despite filing a combined motion to reopen and motion to reconsider, the Petitioner does not state a 
new fact, nor does he support such a fact with documentary evidence, material to the issue of whether 
the proposed endeavor has national importance. See id.; see also 8 C.F.R. § 103 .5(a)(2). Instead, he 
asserts on motion, "through the evidence of record, the [Petitioner] has demonstrated under the 
preponderance of evidence standard, that [he is eligible for a national interest waiver]." Furthermore, 
the extent of the motion filing is the following: 1) the filing fee; 2) a Form G-28, Notice of Entry of 
Appearance as Attorney or Accredited Representative; 3) Form I-290B, Notice of Appeal or Motion; 
4) a copy of the Director's request for evidence; 5) a copy of the Director's decision; 6) a copy of our 
decision dismissing the appeal; and 7) the brief in support of the combined motion. None of these 
documents are documentary evidence supporting a new fact. 
Because the motion to reopen does not state a new fact, suppmied by documentary evidence, we will 
dismiss the motion to reopen. See8 C.F.R. § 103.5(a)(2), (a)(4). 
Turning to the motion to reconsider, the Petitioner identifies several laws or policies that he asserts we 
misapplied. The Petitioner asserts that we misapplied the preponderance of evidence standard. The 
Petitioner also asserts that we misapplied 8 C.F.R. § 103 .2(b )(8). The Petitioner further asserts that 
we misapplied Dhanasar, 26 I&N Dec. 884. 
Except where a different standard is specified by law, a petitioner must prove eligibility for the 
requested immigration benefit by a preponderance of the evidence. Matter of Chawathe, 25 I&N 
Dec. 369, 375-76 (AAO 2010). Under the preponderance of the evidence standard, the evidence must 
demonstrate that the petitioner's claim is "probably true." Id. at 3 76. We will examine each piece of 
evidence for relevance, probative value, and credibility, both individually and within the context of 
the totality of the evidence, to determine whether the fact to be proven is probably true. 
If a petitioner submits relevant, probative, and credible evidence that leads us to believe that the claim 
is "more likely than not" or "probably" true, it has satisfied the standard of proof. Stated another way, 
a petitioner must establish that there is greater than a fifty percent chance that a claim is true. 
In determining national importance, the relevant question is not the importance of the industry, field, 
or profession in which an individual will work; instead, to assess national importance, we focus on the 
"specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 
889. Dhanasarprovided examples of endeavors that may have national importance, as required by 
the first prong, having "national or even global implications within a particular field, such as those 
resulting from ce1iain improved manufacturing processes or medical advances" and endeavors that 
have broader implications, such as "significant potential to employ U.S. workers or has other 
substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90. 
1 SccDhanasar, 26l&NDec. at 888-91, for elaboration on the three prongs. 
2 
The Petitioner asserts, "through the evidence of record, the [Petitioner] has demonstrated under the 
preponderance of the evidence standard ... [he has] highly qualified experience and expertise [and] 
has made significant contributions to the field," he "has demonstrated his record of success in related 
efforts ... and, as such, he is well positioned to advance his proposed endeavor," and that "on balance, 
it would be beneficial for the United States to waive the requirements of a job offer and thus of a labor 
certification." The Petitioner's record of success in the past is material to the secondDhanasarprong, 
whether he is well positioned to advance the proposed endeavor, notthe firstDhanasarprong, whether 
the proposed endeavor rises to the level of national importance. See Dhanasar, 26 I&N Dec. at 888-
91. Similarly, the contributions the Petitioner "has made" to the field in the past is material to the 
second, not the first, Dhansar prong. See id. In tum, whether waiving the requirements of a job offer 
would be beneficial to the United States is material to the third Dhanasar prong. See id. Other than 
providing generalized statements that relate to the second and third Dhanasar prongs, the Petitioner 
does not identify specific evidence of record, either individually or in the aggregate, that establishes 
under the preponderance of evidence standard that the proposed endeavor will have broader 
implications, such as "significant potential to employ U.S. workers or has other substantial positive 
economic effects, particularly in an economically depressed area." See id. at 889-90; see also Matter 
of Chawathe, 25 I&N Dec. at 375-76. Accordingly, the Petitioner does not establish that we 
misapplied the preponderance of evidence standard by dismissing the appeal. 
Next, the Petitioner asserts, "if there is insufficient evidence to meet the [preponderance of evidence] 
standard, examiners should resolve their doubts by requesting clarifying evidence to afford the 
Petitioner the opportunity to explain and document its eligibility," citing 8 e.F.R. § 103 .2(b )(8). The 
Petitioner's reliance on 8 e.F.R. § I 03 .2(b )(8) is misplaced. The regulation states: 
If all required initial evidence has been submitted but the evidence submitted does not 
establish eligibility. [U.S. Citizenship and Immigration Services (USCJS)] may: deny 
the benefit request for ineligibility; request more information or evidence from the 
applicant or petitioner, to be submitted within a specified period of time as determined 
by users; or notify the applicant or petitioner of its intent to deny the benefit request 
and the basis for the proposed denial, and require that the applicant or petitioner submit 
a response within a specified period of time as determined by users. 
8 e.F.R. § 103 .2(b )(8)(iii) ( emphasis added). Although users may request more information or 
evidence from a petitioner, it is not required to do so. Id. On the contrary, users may also deny the 
benefit request for ineligibility. Id. In the alternative, if all required evidence is not submitted with 
the benefit request or it does not establish eligibility, users in its discretion may deny the benefit 
request. 8 e.F.R. § I 03 .2(b )(8)(ii). It is the Petitioner's burden to establish eligibility for the requested 
benefit. Section291 of the Act, 8 U.S.e. § 1361 ;see also 8 e.F.R. § I 03.2(b )(1) (requiring petitioners 
to establish eligibility for the requested benefit at the time of filing the benefit request and to maintain 
eligibility through adjudication). Where, as here, the evidence ofrecord indicated that a basic element 
of eligibility had not been met, it was appropriate for users to deny the petition without a request for 
evidence. Accordingly, the Petitioner does not establish that we misapplied 8 e.F.R. § I 03.2(b )(8) by 
dismissing the appeal. 
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Next, the Petitioner asserts that we misapplied Dhanasar, specifically that we "contradict[ ed] the 
opinion issued in Dhanasar that the AAO emphasized on the geographic location that limits the 
Petitioner to show evidence of creatingjobs and revenues in an economically depressed area." The 
Petitioner asserts that Dhanasar "does not require a petitioner to show substantial economic impact 
on an economically depressed area." The Petitionermischaracterizes our decision, in which we stated: 
In addition, although the Petitioner asserts that [his company] will employ U.S. 
workers, he has not offered sufficient evidence that the area where they will operate is 
economically depressed, that he would employ a significant population of workers in 
that area, or that his endeavor would offer the region or its population a substantial 
economic benefit through employment levels or business activity. 
Our decision did not require the Petitioner to show substantial economic impact on an economically 
depressed area. Instead, it observed that in addition to other reasons discussed therein, the Petitioner 
did not establish that the proposed endeavor has significant potential to employ U.S. workers or has 
other substantial positive economic effects. See Dhanasar, 26 I&N Dec. at 889-90. Accordingly, the 
Petitioner has not established that we misappliedDhanasar by dismissing the appeal. 
In summation, the Petitioner has not established on motion that we misapplied a law or policy and that 
our decision was incorrect based on the evidence in the record of proceedings at the time of the 
decision; therefore, we will dismiss the motion to reconsider. See 8 C.F.R. § 103.5(a)(3), (4). 
Because the Petitioner has not satisfied the first Dhanasar prong on motion, we need not address 
whether he has satisfied the second and third Dhanasar prongs, and we hereby reserve these issues. 
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 of 
L-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). 
III. CONCLUSION 
The Petitioner has not submitted new facts and evidence sufficient to establish that he is eligible for, 
or otherwise merits, a national interest waiver as a matter of discretion. See 8 C.F.R. § 103 .5(a)(2). 
In addition, the Petitioner has not established that our previous decision was based on an incorrect 
application of law or policy and that it was incorrect based on the evidence then before us. See 8 
C.F.R. § 103.5(a)(3). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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