dismissed EB-2 NIW Case: Industrial Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 25, 2024 In Re: 29526567 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an industrial engineering professor and researcher, 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. § l 153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that her proposed endeavor is of national importance, and therefore that she did not merit a 
national interest waiver as a matter of discretion. 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 ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss both of 
the motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). 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. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
The Petitioner's proposed endeavor is to establish an industrial engineering consultancy in the United 
States. She submitted evidence showing that she earned a Ph.D. in industrial engineering and has 
worked as a professor, researcher, and coordinator of post-graduate studies in Venezuela. In our 
decision dismissing her appeal, we agreed with the Director's conclusion that the proposed endeavor 
is of substantial merit in the area of business, but also that the Petitioner did not establish that her 
endeavor is of national importance. Specifically, we noted that she did not support her claims of the 
economic and societal benefits of her proposed endeavor with documentary evidence, and that while 
the recommendation letters she provided lauded her work as a teacher and researcher, they did not 
demonstrate the potential prospective impact of her ownership of a consulting business. 
On motion, the Petitioner submits a brief and a new version of her business plan, dated July 18, 2023. 
This is a revised version of the business plan she submitted in response to the Director's request for 
evidence. Some of the sections added to the business plan discuss the Petitioner's experience, 
additional information about the industry she plans to be engaged in, and expanded sections about her 
proposed company's pricing structure and the hiring of employees. The Petitioner asserts that these 
additional sections establish eligibility, as they show that her endeavor has the potential to generate 
revenue and generate employment, thus having an economic impact on the local economy. 
We initially note that the addition of these new sections to the previously submitted business plan does 
not constitute new facts as required for a motion to reopen. The new paragraphs at section 2.1 of the 
plan, for example, state that she has an advanced degree in a STEM field and related experience, facts 
which were established by evidence already in the record. Other sections added to this previously 
existing document include descriptions of the proposed company's pricing structure and human 
resources costs. However, as it relates to a motion to reopen, new bases for eligibility are distinct from 
the type of "new facts" the regulation references for this type of filing. A post-appellate motion to 
reopen is not the proper forum to advance new claims of eligibility that the Petitioner did not introduce 
at any prior stage in the proceeding. New eligibility claims advanced for the first time to an 
administrative appellate body, even at the motion to reopen stage, are not properly before us, especially 
if the filing party was represented by counsel in the lower proceedings. Matter of M-F-O-, 28 I&N 
Dec. 408, 410 n.4 (BIA 2021) (refusing to consider an appellant's humanitarian claims that were 
presented for the first time to the appellate body). 
In addition, even ifwe were to consider the Petitioner's edits to her proposed company's business plan 
as new facts, which we do not, eligibility for an immigrant visa petition must be established at the time 
of filing. 8 C.F.R. § 103.2(b)(l); see also Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971) 
(providing that "Congress did not intend that a petition that was properly denied because the 
beneficiary was not at that time qualified be subsequently approved at a future date when the 
beneficiary may become qualified under a new set of facts."). This new version of the business plan 
cannot establish the Petitioner's eligibility for a national interest waiver, or more specifically the 
national importance of her proposed endeavor, at the time her petition was filed. As the Petitioner has 
not submitted new facts with her motion to reopen, it does not meet the requirements at 
8 C.F.R. § 103.5(a)(2) and will therefore be dismissed. 
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.S(a)(l)(ii). We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
Here, the Petitioner does not identify any errors in our application of law or policy in the appellate 
decision, nor does she assert that our decision was incorrect based on the record at the time. Indeed, 
after listing the requirements for a motion to reconsider, the Petitioner's brief focuses entirely on the 
revised business plan discussed above. As such, the requirements of a motion to reopen have not been 
met, and the motion will be dismissed. 
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ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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