dismissed EB-2 NIW Case: Healthcare

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 10, 2024 In Re: 34099434 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner 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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that they were a member of the professions the evidence in the record did not support a 
waiver of the required job offer, and thus of a labor certification, would be in the national interest. 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 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
combined motions. 
I. LAW 
A motion to reopen is based on new facts that are supported by documentary evidence, and a motion 
to reconsider is based on an incorrect application of law or policy. The requirements of a motion to 
reopen are located at 8 C.F .R. § 103 .5( a)(2), and the requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3). 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We interpret "new facts" to mean those that are relevant to the issues raised on motion 
and that have not been previously submitted in the proceeding, which includes within the original 
petition . Reasserting previously stated facts or resubmitting previously provided evidence does not 
constitute "new facts." A motion to reopen that does not satisfy the applicable requirements must be 
dismissed. 8 C.F.R. § 103.5(a)(4). 
A motion to reconsider on the other hand must: (1) state the reasons for reconsideration, (2) be 
supported by any pertinent precedent decision to establish that the decision was based on an incorrect 
application oflaw or policy, and (3) establish that the decision was incorrect based on the evidence in 
the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider that does not 
satisfy these requirements must be dismissed. 8 C.F.R. § 103.5(a)(4). 
The review of a motion is limited to the basis for the prior adverse decision. The regulations at 8 
C.F.R. § 103.5(a)(l)(i) generally require that the decision a motion seeks to reopen or reconsider must 
have taken place within the prior 30 days. So we follow the regulations as written and limit our review 
to the prior decision made within 30 days of filing the motion. We evaluate any new facts, arguments, 
or allegations of error in the application of law or service policy in connection with our decision upon 
which the current motion was filed. We may only grant a motion that satisfies these requirements and 
demonstrates eligibility for the benefit sought. 
II. ANALYSIS 
A. Motion to Reopen 
The Petitioner has not provided us with new facts warranting reopening the proceedings here. We 
interpret "new facts" to mean those that are relevant to the issues raised on motion and that have not 
been previously submitted in the proceeding. Reasserting previously stated facts or resubmitting 
previously provided evidence does not constitute submission of"new facts." A motion to reopen must 
state new facts and be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). See also Matter 
ofCoelho, 20 I&N Dec. 464, 4 73 (BIA 1992) (requiring that new evidence have the potential to change 
the outcome). 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification under section 203(b)(2)(B)(i) of the Act and then establish 
that they merit discretionary waiver of the job requirement "in the national interest." Matter of 
Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016). The Director concluded the Petitioner possessed an 
advanced degree but was not a member of the professions and therefore was categorically ineligible 
for EB-2 permanent employment-based immigrant classification. The Director further concluded the 
Petitioner did not demonstrate eligibility for a waiver of the job offer requirement, and thus of a labor 
certification, upon application of the Dhanasar analytical framework. We dismissed the Petitioner's 
appeal because their appeal did not address the Director's conclusion that they were not a member of 
the professions in possession of an advanced degree. And further, we concluded that the Petitioner's 
proposed endeavor was not nationally important because they did not adequately describe its broader 
implications. 
The only "new fact" the Petitioner submitted on motion is the State of Florida's initiative to train and 
retain healthcare workers evidenced by a CBS News article from March 21, 2024. 1 But, the State of 
Florida's initiative does not absolve the Petitioner of the requirement to address all issues on appeal 
with specificity. When dismissing an appeal, the AAO does not address issues that were not raised 
with specificity on appeal. Issues or claims that are not raised on appeal are deemed to be "waived." 
1 On motion, the Petitioner resubmits the evidence and documentation in support of their initial petition and responses to 
the Director's request for evidence (RFE) and notice of intent to deny (ITD). Repeating prior assertions of eligibility and 
resubmitting evidence previously considered on de novo appeal are not new facts with the potential to change the outcome 
of the matter. 
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See, e.g., Matter ofM-A-S-, 24 l&N Dec. 762, 767 n.2 (BIA 2009). The courts' view of issue waiver 
varies from circuit to circuit. See Rizkv. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that 
issues not raised in a brief are deemed waived); Martinez-Serrano v. INS, 94 F .3d 1256, 1259 (9th Cir. 
1996) (finding that an issue referred to in an affected party's statement of the case but not discussed in 
the body of the brief is deemed waived). The Petitioner's exclusion of any assertion or contention in 
their appeal to rebut the Director's conclusion that they were not a professional in possession of an 
advanced degree is not cured by the State of Florida's initiative to train and retain healthcare workers. 
Additionally, the Petitioner simply resubmits their prior assertions and evidence to contend that they 
are eligible for a discretionary waiver of the requirement of a job offer, and thus a labor certification, 
upon application of the Dhanasar analytical framework. They present no new facts supported by 
evidence that could have the potential to change the outcome of this matter. So, there is no factual or 
legal basis for us to consider reopening the matter before us. 
B. Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration and that the decision was based on 
an incorrect application oflaw or USCIS policy. 8 C.F.R. § 103.5(a)(3). The Board oflmmigration 
Appeals generally requires that a motion to reconsider assert an error was made at the time of the 
previous decision. The very nature of a motion to reconsider is the claim that the original decision 
was defective in some regard. See Matter of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006). 
A motion to reconsider must: (1) state the reasons for reconsideration; (2) be supported by any 
pertinent precedent decision to establish that the decision was based on an incorrect application of law 
or policy; and (3) establish that the decision was incorrect based on the evidence in the record at the 
time of the decision. 
The Petitioner's motion simply repeats and restates the arguments and documents they aver support the 
national importance of their endeavor that were introduced earlier in these proceedings. Moreover, the 
Petitioner asserts no legal error in our conclusion that they waived the issue of their eligibility for 
categorical classification as an employment based second preference permanent immigrant. They have 
not supported their stated reasons with any pertinent precedent decision to establish that the decision 
was based on an incorrect application oflaw or policy. And they have not established that the decision 
was incorrect based on the evidence in the record at the time of the decision. The Petitioner's motion 
essentially expresses their disagreement with our conclusions. But merely disagreeing with our 
conclusions without showing that we erred as a matter oflaw is not a ground to reconsider our decision. 
See O-S-G-, 24 I&N Dec. at 58. The Petitioner has not demonstrated how we erred in our previous 
decision on the Petitioner's appeal. Consequently, it does not meet the requirements for a motion to 
reconsider and does not overcome the reasons for our previous decision. So, the Petitioner has not 
shown proper cause for reconsidering our decision on its previous motion. 
III. CONCLUSION 
The Petitioner should note that the filing of a motion to reopen or reconsider does not provide any 
interim benefits such as staying the execution of any decision or extending a previously set departure 
date. 8 C.F.R. § 103.5(a)(l)(iv). The Petitioner has not demonstrated that we should either reopen 
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the proceedings or reconsider our decision. Therefore, the combined 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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