dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 2, 2024 In Re: 29787284 
Motions on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks classification under the employment-based, second-preference (EB-2) immigrant 
visa category and a waiver of the category's job-offer requirement. See Immigration and Nationality 
Act (the Act) section 203(b)(2)(B)(i) , 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) has discretion to excuse a job offer in this category - and a related requirement for 
certification from the U.S. Department of Labor - if a petitioner demonstrates that waiving these U.S.­
worker protections would be "in the national interest." Id. 
The Acting Director of the Texas Service Center denied the petition. The Director concluded that the 
Petitioner did not demonstrate the merits of his waiver request. On appeal, we affirmed the Director's 
finding that the Petitioner did not establish the "national importance" of his proposed U.S. information 
technology consulting business. See In Re: 27437853 (AAO July 12, 2023). 1 We reserved 
consideration of the Director's other findings. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating 
that agencies need not make "purely advisory findings" on issues unnecessary to their ultimate 
decisions). 
The matter returns to us on the Petitioner's combined motions to reopen and reconsider. He asserts 
that, by undervaluing evidence of his proposal's national importance, we violated his Constitutional 
rights. 
The Petitioner bears the burden of demonstrating eligibility for the requested waiver by a 
preponderance of the evidence. See Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). 
Upon review, we conclude that the motion to reopen does not meet applicable requirements and that 
the motion to reconsider does not establish his eligibility for the requested waiver. We will therefore 
dismiss the motions. 
1 Besides demonstrating the national importance of their endeavor and eligibility for the EB-2 category, a petitioner 
requesting a national interest waiver must demonstrate that: their proposal has "substantial merit;" they are "well­
positioned" to advance the endeavor; and, on balance, a waiver would benefit the United States). Matter of Dhanasar, 
26 I&N Dec. 884, 889-91 (AAO 2016). 
I. LAW 
A motion to reopen must state new facts supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). 
In contrast, a motion to reconsider must demonstrate that our prior decision misapplied law or USCIS 
policy based on the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). We may grant motions 
that meet these requirements and demonstrate eligibility for the requested benefit. See Matter of 
Coelho, 20 I&N Dec. 464,473 (BIA 1992). 
II. ANALYSIS 
A. Motion to Reopen 
Contrary to motion-to-reopen requirements, the Petitioner does not state any new facts. We must 
therefore deny his motion to reopen. See 8 C.F .R. § I 03 .5(d) ("A motion that does not meet applicable 
requirements shall be dismissed.") 
B. Motion to Reconsider 
The Petitioner contends that we misanalysed evidence of his proposal's national importance. He 
alleges that we "violat[ed] the Fourth Amendment of the Constitution of the United States of America 
as Petitioner provided timely and proper notice to his RFE [request for additional evidence] response 
to USCIS." 
The Petitioner's Constitutional argument lacks merit. The Fourth Amendment protects "[t]he right of 
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and 
seizures." The Petitioner does not explain how USCIS searched or seized him in this matter. As the 
Fourth Amendment does not appear to apply, the Petitioner's Constitutional argument is unpersuasive. 
Also, the Petitioner does not specify any evidence that we allegedly misanalysed or that purportedly 
demonstrates his proposal's national importance. Thus, his motion to reconsider does not establish 
his eligibility for a national interest waiver. 
III. CONCLUSION 
The Petitioner's motion to reopen does not state new facts . Also, his motion to reconsider does not 
demonstrate his eligibility for the requested national interest waiver. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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