dismissed EB-2 NIW Case: Healthcare And Life Sciences

U.S. Citizenship 
and Immigration 
Services 
In Re: 21290200 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUL. 05, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a healthcare and life sciences management specialist, seeks second preference immigrant 
classification as an individual of exceptional ability in the sciences, arts or business, 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 although the Petitioner 
qualified for classification as a member of the professions holding an advanced degree, 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 appealed the matter to us, and we dismissed the appeal. We also 
dismissed the subsequently filed motion to reopen, as well as the motion to reconsider that followed. 
The matter is now before us on a combined motion to reopen and reconsider. With his third motion, 
the Petitioner submits a brief and additional evidence. 
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 to reopen 
and reconsider. 
I. LAW 
We set forth a framework for adjudicating national interest waiver petitions in the precedent decision 
Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). In announcing this new framework, we vacated 
our prior precedent decision, Matter of New York State Department of Transportation, 22 l&N Dec. 
215 (Act. Assoc. Comm'r 1998). Dhanasar states that after a petitioner has established eligibility for 
EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may grant a national interest 
waiver as matter of discretion. See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th 
Cir. 2019) (finding USCIS' decision to grant or deny a national interest waiver to be discretionary in 
nature). As a matter of discretion, the national interest waiver may be granted if the petitioner 
demonstrates: (1) that the foreign national' s proposed endeavor has both substantial merit and national 
importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and 
(3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer 
and thus of a labor certification. See Dhanasar, 26 l&N Dec. at 888-91, for elaboration on these three 
prongs. 
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 (1) state the reasons for reconsideration and establish that 
the decision was based on an incorrect application of law or USCIS policy, and (2) establish that the 
decision was incorrect based on the evidence in the record of proceedings at the time of the initial 
decision. 8 C.F.R. § 103.5(a)(3). 
The regulation at 8 C.F.R. § 103.5(a)(1)(i) limits our authority to reopen or reconsider to instances 
where the applicant has shown "proper cause" for that action. Thus, to merit reopening or 
reconsideration, an applicant must not only meet the formal filing requirements (such as submission 
of a properly completed Form I 290B, Notice of Appeal or Motion, with the correct fee), but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See 8 C.F.R. § 103.5(a)(4). 
II. ANALYSIS 
As a preliminary matter, we note that by regulation, the scope of a motion is limited to "the prior 
decision." 8 C.F.R. § 103.5(a)(l)(i). The issue before us is whether the Petitioner has submitted new 
facts to warrant reopening or has established that our decision to dismiss the prior motion to reconsider 
was based on an incorrect application of law or USCIS policy. We therefore incorporate our prior 
decision by reference and will repeat only certain facts and evidence as necessary to address the 
Applicant's claims on motion. 
A. Motion to Reopen 
Initially, we note that motions for the reopening of immigration proceedings are disfavored for the same 
reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered 
evidence. INS v. Doherty, 502 U.S. 314, 323, (1992) (citing INS v. Abudu, 485 U.S. 94, 108 (1988)); 
see also Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 2004). There is a strong public interest in 
bringing proceedings to a close as promptly as is consistent with giving both parties a fair opportunity to 
develop and present their respective cases. INS v. Abudu, 485 at 107. 
Based on its discretion, USCIS "has some latitude in deciding when to reopen a case" and "should have 
the right to be restrictive." Id. at 108. Granting motions too freely could permit endless delay when 
foreign nationals continuously produce new facts to establish eligibility, which could result in needlessly 
wasting time attending to filing requests. See generally INS v. Abudu, 485 U.S. at 108. The new facts 
must possess such significance that, "if proceedings ... were reopened, with all the attendant delays, 
the new evidence offered would likely change the result in the case." Matter of Coelho, 20 l&N Dec. 
464, 473 (BIA 1992); see also Maatougui v. Holder, 738 F.3d 1230, 1239-40 (10th Cir. 2013). 
Therefore, a party seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 at 110. 
With the current motion, the Petitioner has not met that burden. 
The Petitioner asserts that he has made consistent progress on his proposed endeavor and submits 
additional evidence regarding a gene therapy project he recently worked on for a life science company 
2 
called While we acknowledge this evidence, it constitutes one example of 
the types of projects the Petitioner plans to undertake as a part of his proposed endeavor. As this 
project is in progress or has already occurred, it is not evidence of his proposed endeavor moving 
forward, but rather serves an example of progress made in the past towards his proposed endeavor. 
Accordingly, this evidence pertains to whether the Petitioner is well positioned to advance his 
proposed endeavor under prong two of Dhanasar, rather than the matter at issue on motion, which is 
the national importance of the proposed endeavor. Even if we considered this evidence under the first 
prong, it would not establish that the proposed endeavor has national importance. Rather, the evidence 
indicates that the technology developed byl lis trademarked and the subject of hundreds of 
patents, which suggests it is not available to the public, science at large, or to individual doctors and 
hospitals that have not purchased it asl I clients. Furthermore, the role that the 
Petitioner served tori I does not appear to be a service that the Petitioner provides to the 
public or to science at large, but rather it appears that he provides his services only to the specific 
entities that hire or contract him for his services. Accordingly, even if we considered this evidence 
under prong one of Dhanasar, it would not establish the national importance of the proposed endeavor. 
The Petitioner preemptively acknowledges he must establish that all eligibility requirements for the 
immigration benefit have been satisfied from the time of filing and continuing through adjudication 
under 8 C.F.R. § 103.2(b)(l), that in accordance with Matter of lzummi, 22 l&N Dec. 169, 175 
(Comm'r 1988), a petition cannot be approved at a future date after the petitioner becomes eligible 
under a new set of facts, as well as that Matter of lzummi, citing Matter of Bardouille, 18 l&N Dec. 
114 (BIA 1981), states that USCIS cannot "consider facts that come into being only subsequent to the 
filing of a petition." Id. at 176. Nevertheless, he claims that this regulation and case law do not apply 
to him because he has already established his eligibility as a member of the professions holding an 
advanced degree. However, the Petitioner may be confusing his eligibility for the requested EB-2 
classification, a threshold eligibility requirement, with his eligibility for a national interest waiver 
under Dhanasar. Our prior decisions have explained that section 203(b) of the Act is a sequential 
framework and that after a petitioner establishes eligibility for EB-2 classification, USCIS may grant 
a national interest waiver if the petitioner demonstrates eligibility under each of the Dhanasar prongs. 
Although the Director found the Petitioner qualifies as a member of the professions holding an advance 
degree, this is separate and apart from the analysis conducted under Dhanasar. As such, the above­
cited regulation and cases prohibit us from considering evidence that came into being after the filing 
of the petition. Therefore, as the Petitioner's work on a gene therapy project withl I 
lcame into existence after the filing of the petition, evidence of such project cannot be 
considered as establishing eligibility under any of the Dhanasar prongs. 
Although the Petitioner provides documents that purport to establish eligibility under the first prong 
of Dhanasar, the Petitioner previously had ample opportunity to submit evidence pertaining to the 
national importance of the proposed endeavor, such as in his response to the Director's request for 
evidence (RFE) and on appeal. Documentation of the national importance of the proposed endeavor 
was already requested in the prior proceeding and is therefore not new. The evidence he now submits 
on his third motion cannot be considered new, as it involves matters already considered and 
adjudicated. Additionally, as explained above, even if we considered it new evidence, it would still 
not establish the Petitioner's eligibility under the first prong of Dhanasar. Accordingly, the Petitioner 
has not shown proper cause for reopening the proceedings. 
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B. Motion to Reconsider 
On motion, the Petitioner contends that our prior decision did not reflect a consideration of all the 
evidence. However, the standard of review on motion differs from the de nova standard of review we 
employ on appeal. The filing before us does not entitle the Petitioner to a reconsideration of the denial 
of the petition or even the Petitioner's prior appeal. Rather, a motion to reconsider pertains to our 
most recent decision. In other words, we examine any new arguments to the extent that they pertain 
to our dismissal of the Petitioner's prior motion. Therefore, we cannot consider new objections to the 
earlier denial of the petition or the Petitioner's appeal of it, and the Petitioner cannot use the present 
filing to make new allegations of error at prior stages of the proceeding. 
The Petitioner argues that his proposed endeavor is nationally important and that we erred in our 
decision by not considering evidence demonstrating how society would benefit from his proposed 
endeavor. He contends that we did not consider his contributions: (1) to the development of a medical 
device used to diagnose and tread I (2) to the commercialization of a drug designed to 
treat people with a resistant form ofl I (3) to enabling a gene therapy company to enter 
the U.S. market; and (4) to the increased economic activity resulting from the company's market entry, 
including the acquisition of the company. However, in review of our prior decision, we stated that the 
Petitioner "has not sufficiently established that the societal impact of his proposed endeavor rises to 
the level of national importance consistent with the analysis provided in our precedent decision." This 
sentence demonstrates that our prior decision undertook a specific consideration of evidence 
pertaining to the proposed endeavor's benefits to society and found the evidence to be insufficient. To 
provide further context, the evidence does not show that the Petitioner's services in such areas were 
made available to society at large. For example, he does not assert that he provides services beyond 
the specific companies that hire or contract him. Further, the specific design and construction of the 
medical device and drugs do not appear available to science or the public at large. The evidence 
provided does not suggest, for instance, that doctors and hospitals may access the technology 
underlying the device and drug without becoming clients of the company that sells them. Rather, it 
appears that the benefit accrues to the organizations that pay for the Petitioner's services and to those 
entities that purchase the products from its creators. Although the benefits of such products may 
eventually trickle down to patients through the work of doctors or hospitals that purchase a device or 
drug, such theoretical effects would not be the result of the proposed endeavor, but rather would be 
the result of the widespread purchase of the products. 
The Petitioner next argues for a broad overhaul of the current national interest waiver framework. He 
requests that we apply a different national importance standard than that of Dhanasar and suggests 
instead that we use the standard used by the National Science Foundation (NSF). However, precedent 
case law and policy do not currently permit a departure from the standards set forth in Dhanasar. Had 
the Petitioner submitted evidence that he receives grant money from the NSF to provide his services, 
we would certainly have considered it as relevant to the national importance of the proposed endeavor. 
However, even if the Petitioner submitted evidence of NSF granted funding toward the general 
"commercialization of translational research," the unknown nature of the Petitioner's various future 
projects would prevent us from ascertaining whether the Petitioner's services would rise to the level 
of national importance. 
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To the extent the Petitioner's proposed endeavor is the services he provides to other companies within 
the general realm of commercialization and innovation of translational research, he has not shown he 
would offer his services on a scale so significant that it would rise to the level of national importance. 
As previously stated, the Petitioner does not suggest he will offer his services beyond those who hire 
or contract him to provide such services. On the other hand, if the proposed endeavor is comprised of 
the unknown future projects for which he may be hired, the speculative nature of the projects would 
preclude us from determining the national importance of them and therefore would not establish 
eligibility under Dhanasar. While the Petitioner may request that we accept his proposed endeavor 
and determine that it has national importance, we already explained in our prior decision that the 
Petitioner's evidence "relates to the overall importance of the commercialization and innovation stage 
from research rather than identifying and establishing the national importance of his specific proposed 
endeavor" ( emphasis added). 
The Petitioner also suggests that our interpretation of the Dhanasar framework unduly disadvantages 
corporate innovators. Even if true, this would not be a basis for approving the Petitioner's petition. 
Simply because it may be more difficult to meet the eligibility requirements as a corporate innovator 
does not mean that the standards set forth in Dhanasar can be lowered for such petitioners. It is the 
petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 
8 U.S.C. § 1361; Matter of Skirball Cultural Ctr., 25 l&N Dec. 799, 806 {AAO 2012). 
For the foregoing reasons, the Petitioner has not shown that our prior decision contained errors of law 
or policy, or that the decision was incorrect based on the record at the time of that decision. Therefore, 
the motion does not meet the requirements of a motion to reconsider, and it must be dismissed. 
Ill. CONCLUSION 
For the reasons discussed, the evidence provided in support of the motion to reopen does not overcome 
the grounds underlying our prior decision, and the Petitioner's motion to reconsider has not shown 
that our prior decision was based on an incorrect application of law or USCIS policy. Therefore, the 
combined motion to reopen and reconsider will be dismissed for the above stated reasons. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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