dismissed EB-2 NIW Case: Hvac

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 12, 2024 In Re: 34812349 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an HV AC professional, seeks employment-based second preference (EB-2) immigrant 
classification as an individual of exceptional ability, 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. § l 153(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
established that he qualified for classification as an individual of exceptional ability. The Director 
also detennined that the Petitioner had not established that a waiver of the required job offer, and thus 
of the labor certification, would be in the national interest. The Director dismissed a subsequently 
filed motion to reopen and reconsider. The matter is now before us on appeal. 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 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
I. LAW 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if 
the petitioner demonstrates that: 
1 See Flores v. Garland , 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
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 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). 
II. ANALYSIS 
The Petitioner claims to be an HV AC and electrical expert and intends to continue his work in this 
field in the United States. In denying the petition, the Director determined that the Petitioner did not 
establish that he qualified for classification as an individual of exceptional ability or 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 reconsider which the Director dismissed, 
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, 
he 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 combined motion. 
The only issue correctly before us on appeal is whether the immediate prior decision - that is, the 
Director's decision dated April 19, 2024 dismissing the Petitioner's motion to reopen and reconsider 
- was correctly decided. Our review and analysis in this matter, therefore, will focus on that 
determination. Upon review, we concur with the Director's decision dismissing the combined motion. 
A. Motion to Reopen 
In dismissing the Petitioner's motion to reopen, the Director determined 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: 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver is discretionary 
in nature). 
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l . Support Letter 
2. Business Plan 
3. Opinion letter from ____ 
4. Document titled "Social Security Statement" 
5. Document from the Ministry of Industry 
6. Document titled "Capa de Processo" 
7. Documenttitled l ___________ 
8. Salario article 
9. Letters of recommendation 
l0. Course completion certificates 
11. Copy of Petitioner's High School Technical Diploma 
12. Printout of assistance page from I I 
13. A ccredi tati on 1 etters 
14. Certificate of quality of services for Service provision and Air Conditioning 
15. I !Certificate 
16. Letter of intent from 
17. Article titled "Study: Immigrants in the U.S. are more likely to start firms, create jobs." 
After review of the statements submitted on motion and the accompanying documentation, we concur 
with the Director's determination. Specifically, we note that almost all of the evidence submitted on 
motion was previously submitted in support of the petition or in response to the Director's request for 
evidence. A review of the evidence submitted on motion before the Director reveals no fact that could 
be considered new under 8 C.F.R. 103.5(a)(2). 
Additionally, as noted by the Director, the Petitioner's submissions on motion did not address or resolve 
inconsistencies in the evidence previously submitted, such as discrepancies regarding his claimed foreign 
employment history. Rather than stating new facts supported by documentary evidence, the Petitioner 
resubmitted evidence and maintained that this previously submitted evidence was sufficient to overcome 
the Director's adverse findings. 
Moreover, the Director properly determined that the Petitioner's resubmission of and reliance on his 
business plan for his company, Iwas not probative because the Petitioner was 
required to demonstrate eligibility at the time of filing. 2 On appeal, we note the Petitioner's repeated 
assertions that his proposed HVAC company and its accompanying business plan demonstrate the 
substantial merit and national importance of his proposed endeavor, but for the same reasons noted by the 
Director, we find this documentation insufficient. U.S. Citizenship and Immigration Services (USCIS) 
regulations affirmatively require a petitioner to establish eligibility for the benefit sought at the time the 
petition is filed. See 8 C.F.R. § 103.2(b)(l). A petitioner may not make material changes to a petition 
that has already been filed to make a deficient petition conform to USCIS requirements. See Matter of 
Izummi, 22 I&N Dec. 169, 175 (Comm'r 1988); see also Matter ofKatigbak, 14 T&N Dec. 45, 49 (Reg'! 
Comm'r 1971 ). On motion, the Petitioner did not contest the Director's adverse determination on this 
2 In response to the Director's request for evidence, the Petitioner stated for the first time that he intended to work as the 
CEO and chief technical officer of his own company, in contrast to his initial assertion that he intended to provide HVAC 
installation and corrective maintenance services. 
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issue, nor did he submit documentary evidence demonstrating his eligibility at the time of filing of the 
underlying petition. 
Further, we agree with the Director's determination that the resubmission of letters on motion, 
including the opinion letter of I I and the letter of intent from I 
______ did not reveal facts that could be considered new under 8 C.F.R. 103.5(a)(2). The 
Director noted that these letters had been previously considered and therefore did not warrant a change in 
the adjudication decision of the petition. 
For the reasons outlined above, we find no error in the Director's decision dismissing the motion to 
reopen. 
B. Motion to Reconsider 
The Director dismissed the motion to reconsider on the basis that it did not provide reasons for 
reconsideration 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. 
On appeal, the Petitioner challenges the Director's determination that he does not qualify for 
classification as an individual of exceptional ability. To demonstrate eligibility for EB-2 classification 
as an individual of exceptional ability, a petitioner must submit documentation that satisfies at least 
three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii). If a petitioner meets the 
minimum requirements by providing at least three types of initial evidence, officers should evaluate 
the evidence together when considering the petition in its entirety for the final merits determination. 
See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policymanual. The officer 
must determine whether the petitioner, by a preponderance of the evidence, has demonstrated a degree 
of expertise significantly above that ordinarily encountered in the sciences, arts, or business. Id. 
In the underlying decision denying the petition, the Director analyzed the evidence submitted by the 
Petitioner under all six of the evidentiary criteria and determined that the Petitioner met the requisite 
minimum of three criteria. After conducting a final merits determination, the Director determined that 
although the Petitioner met at least three out of six criteria under 8 C.F.R. § 204.5(k)(3)(ii), the record 
lacked evidence that the Petitioner's professional achievements demonstrated a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In dismissing the Petitioner's motion, the Director recounted the findings set forth in the final merits 
determination and concluded that the Petitioner did not provide reasons for reconsideration that were 
supported by citations to appropriate statutes, regulations, or precedent decisions, and did not show 
that the determination regarding his eligibility for the underlying classification was incorrect based on 
the evidence of record at the time of the decision. On appeal, the Petitioner argues that "the judging 
officer failed to analyze ALL THE FORMAL ELIGIBILITY REQUIREMENTS FOR EB2 
EXCEPTIONAL ABILITY, since the judge only analyzed 3 evaluative criteria ... " 
The Petitioner's assertion on appeal that the Director "only analyzed 3 evaluative criteria," while 
noted, is misplaced. Initially, the Director analyzed the Petitioner's evidence under all six criteria and 
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conducted a final merits determination, and restated the reasons for their adverse findings in the 
decision dismissing the motion. On motion, the Petitioner did not specifically and sufficiently 
articulate why the Director's decision determining that he was ineligible for classification as an 
individual of exceptional ability was based on an incorrect application of law or USCIS policy, nor 
did the Petitioner cite to any relevant statute, regulation or relevant precedent decision that would 
support a contention that the Director's decision was based upon a misapplication of statute, 
regulation, or policy to the evidence of record before the Director at the time of the decision to deny 
the petition. 
Regarding his eligibility for a national interest waiver, the Petitioner makes no specific assertion of 
error on appeal with regard to the Director's April 19, 2024 decision. The Petitioner did not provide 
reasons for reconsideration 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 ofrecord 
at the time of the decision. Rather, his appellate brief simply reasserts facts already considered by the 
Director and maintains that a waiver of the required job offer, and thus of the labor certification, would 
be in the national interest. 
For the reasons outlined above, we conclude that the Director's decision dismissing the Petitioner's 
motion to reconsider was correctly decided. 
III. CONCLUSION 
The 
Director properly determined that the Petitioner's combined motion did not meet the requirements 
under 8 C.F.R. § 103.5(a)(2) and (3). 
ORDER: The appeal is dismissed. 
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