dismissed EB-2 NIW Case: Human Resources

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 3, 2024 In Re: 33463047 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a human resources specialist, seeks employment-based second preference (EB-2) 
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 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 the Petitioner qualified as a member of the professions holding an advance degree. We 
dismissed a subsequent appeal, motion to reconsider, and second combined motion to reopen and 
reconsider. The matter is now before us on a third motion to reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
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. 
In our previous decision dismissing the combined motions to reopen and reconsider, incorporated here 
by reference, we concluded that the Petitioner had not established eligibility as an advanced degree 
professional because she had not demonstrated five years of progressive post-baccalaureate experience 
in the specialty as required by 8 C.F.R. § 204.5(k)(2). Regarding the letter froml Iwe 
explained that there was no prior mention of this position on the Petitioner's resume, the Form ETA-
750B, or in any of her statements in the record, including her affirmation submitted with the 
aforementioned letter. Citing to Matter ofHo, 19 I&N Dec. 582, 591-592 (BIA 1988), we noted that 
"a petitioner must resolve discrepancies in the record with independent, objective evidence pointing 
to where the truth lies." We also explained that if the Petitioner wanted this specific experience to be 
considered as evidence that she qualifies as an advanced degree professional, she should have included 
it with the initial petition or in response to the Director's request for evidence. 1 Regarding the non­
existence or other unavailability of required evidence, we explained that the affidavits relied on by the 
Petitioner must overcome the unavailability of both primary and secondary evidence, and other than 
the affidavits confirming that her previous employer went out of business, the Petitioner did not 
explain why she could not provide any other evidence or proof of employment. We noted that the 
affidavits do not establish the unavailability of both primary and secondary evidence as required by 8 
C.F.R. § 103.2(b )(2)(i) and (ii). Regarding her position atl we explained that the Petitioner 
reargued facts and issues we had already considered in our previous decisions, and did not provide 
"independent, objective evidence" to resolve the discrepancies in the record regarding what her role 
atl Iactually entailed. 
On this third motion to reconsider, the Petitioner contends that our prior decision was incorrect based 
on the evidence of record provided with the prior combined motions to reopen and reconsider. First, 
the Petitioner states that we "based [our] analysis of the evidence on a stricter-than-required standard 
when evaluating her professional experience in the human resources area." 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. at 375-76. Under the 
preponderance of the evidence standard, the evidence must demonstrate that a Petitioner's claim is 
"probably true." Id. at 376. Here, the Petitioner states that her record demonstrates she has completed 
the five years of progressive post-baccalaureate experience in the specialty required. However, she 
does not point to specific instances where we required a "stricter standard" or explain how we applied 
a different standard of proof other than by the preponderance of the evidence. 
Next, the Petitioner addresses the letter from I I and asserts that it does not introduce an 
inconsistency to the record. She states that her previous motion to reopen "provide[ d] an opportunity 
to present new facts supported by affidavits or other documentary evidence ... [and] there [is] no 
regulatory requirements mandating that evidence submitted with a motion to reopen must have been 
previously unavailable or undiscoverable." Thus, the purported inconsistencies regarding her role as 
a consultant atl Iare not necessarily indicative of falsification or deception. However, while 
we acknowledge the Petitioner's statements that this letter contributes to a more comprehensive 
professional history, the Petitioner has not explained why this position and experience was omitted 
from her resume, the Form ETA-750B, or all of her statements in the record, including her affirmation 
submitted with the same motion to reopen. 
Third, the Petitioner addresses the unavailability of primary evidence and states that she has already 
demonstrated that I I ceased operations in 2018 and the company's CEO has passed away, 
which has made it "impossible for her to obtain the required documentation directly from the 
company." She states that she "has submitted secondary evidence, including affidavits from 
individuals with direct personal knowledge of her employment at I I which serve as 
corroborative evidence to support her claims in the absence of traditional documentary evidence. 
However, we reiterate here that the fact that the company closed, and its CEO passed away, is not 
sufficient to demonstrate that the Petitioner was unable to obtain primary or secondary evidence or 
proof of employment. As we pointed out in our previous decision, the company had a number of other 
1 8 C.F.R. § 103.2(b )( 11 ). See Matter ofSoriano, 19 I&N Dec. 764, 766 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 
533,537 (BIA 1988). 
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employees at the time the Petitioner was employed, including upper management and the Petitioner's 
own subordinates. The Petitioner, again, has not explained why she could not provide any other 
evidence or proof of employment; she merely indicates that the affidavits previously submitted are 
sufficient to overcome the unavailability of primary and secondary evidence as they are sworn 
statements from individuals who are not parties to the petition but have direct personal knowledge of 
the events and circumstances surrounding her employment atl I 
Finally, the Petitioner addresses her position atl land asserts that the affidavits regarding her 
position constitute a comprehensive and coherent representation of her employment history at 
__ She further states that "any perceived discrepancies are minor and do not detract from the 
overall credibility of her petition." However, again, the Petitioner does not provide "independent, 
objective evidence" to resolve the discrepancies in the record regarding what her role at I 
actually entailed. 
The scope of a motion is limited to "the prior decision" and "the latest decision in the proceeding." 
8 C.F.R. § 103.S(a)(l)(i), (ii). 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 motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
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