dismissed EB-2 NIW Case: Information Technology

U.S. Citizenship 
and Immigration 
Services 
In Re: 22973022 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 21, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, an entrepreneur, seeks second preference immigrant classification as an individual of 
exceptional ability 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner met the requisite three evidentiary criteria to show that he met the initial 
evidence requirement for this classification . In addition, the Director determined that a waiver of the 
job offer requirement, and thus of a labor certification, would not be in the national interest. The 
Petitioner subsequently appealed the Director's decision . After considering the Petitioner's response 
to our notice of intent to dismiss (NOID), we concluded that the Petitioner made willful 
misrepresentations of material facts relating to his work experience, his contributions to his field of 
endeavor, and his positioning to advance his proposed endeavor, and was therefore ineligible for the 
requested benefit. He now files a motion to reconsider. 
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 motion . 
I. LAW 
A motion to reconsider must establish that our 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) . We do not consider new facts or evidence in a motion 
to reconsider. 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business . Because this classification requires that the 
individual's services be sought by a U.S . employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the 
Attorney General deems it to be in the national interest, waive the 
requirements of subparagraph (A) that an alien's services in the sciences, 
arts, professions, or business be sought by an employer in the United States. 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Exceptional ability in the sciences, arts, or business means a degree of expertise 
significantly above that ordinarily encountered in the sciences, arts, or business. 
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements 
for demonstrating eligibility 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). This, however, is only the first step, and the successful submission of evidence 
meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 1 
When a petitioner submits sufficient evidence at the first step, we will then conduct a final merits 
determination to decide whether the evidence in its totality shows that the beneficiary is recognized as 
having a degree of expertise significantly above that ordinarily encountered in the field. 8 C.F.R. § 
204.5(i)(3)(i). 
1 USCTS has previously confirmed the applicability of this two-part adjudicative approach in the context of aliens of 
exceptional ability. USCIS Policy Memorandum, Evaluation of Evidence Submitted with Certain Form 1-140 Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14, PM-602-0005.1 (Dec. 22, 
2010). 
2 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884. 2 Dhanasar states that after EB-2 eligibility has been established, USCIS 
may, as a matter of discretion, grant a national interest waiver 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. 3 
II. ANALYSIS 
In our appeal decision, we found that the Petitioner made several willful misrepresentations regarding 
his qualifications which were material to his eligibility as an individual of exceptional ability and to 
whether he merits a national interest waiver of the job offer requirement inherent to that immigrant 
classification. Specifically, we concluded that the record does not sufficiently corroborate his previous 
work experience with O-P-, nor does it support his claims to have authored several patents which were 
implemented at this business and others. We noted that in an attempt to support these claims, he 
submitted patents which were either unrelated to his claims or authored by another person. In addition, 
we concluded that the record includes inconsistencies and unsubstantiated assertions regarding the 
Petitioner's work experience with D-S-, a company which he claimed to serve as founding director. 
When he was provided with an opportunity to address these many inconsistencies and unsupported 
assertions, the Petitioner did not submit sufficient evidence to overcome them. 
In his motion to reconsider, the Petitioner primarily reiterates the arguments he presented on appeal 
and in response to our NOID, and does not specify any law or policy which was incorrectly applied in 
our previous decision. For example, he states again that P- LLC is the "doing business" name of O­
P- and that we erred in our conclusion that he misrepresented the nature of his duties with O-P-, but 
simply repeats that his father's position as a partial owner allowed him to evaluate the Petitioner's 
"ability to perform as a high-ranking CEO." He asserts that his rapid promotion is not unusual for a 
family business, as closer interactions with the owner allow "potential heirs to the business have more 
intimate knowledge about the business operations, and therefore are promoted faster than outside 
hires." While this may be true, this statement does not adequately address the inconsistencies in the 
record regarding his employment with O-P- or fill in the gaps in the record to support his claims of 
possessing "outstanding expertise and ability in the field of I technology" at the time of 
his hiring. 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 T&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSD07). 
3 To establish that it would be in the national interest to waive the job offer requirement, a petitioner must go beyond 
showing their expertise in a particular field. The regulation at 8 C.F.R. § 204.5(k)(2) defines ·'exceptional ability" as "a 
degree of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute. individuals of 
exceptional ability are generally subject to the job offer/labor certification requirement; they are not exempt by virtue of 
their exceptional ability. Therefore, whether a given petitioner seeks classification as an individual of exceptional ability, 
or as a member of the professions holding an advanced degree, they must go beyond demonstrating a degree of expertise 
significantly above that ordinarily encountered in their field of expertise to establish eligibility for a national interest 
waiver. See Dhanasar. 26 I&N Dec. at 886 n.3. 
3 
In addition, the Petitioner does not address many of the other material inconsistencies and unsupported 
assertions which led us to find that he had willfully misrepresented facts regarding his eligibility. For 
instance, despite his claims to have utilized his own patented technologies inl I projects 
for O-P-, the Petitioner does not indicate that our determination that the record lacks evidence of any 
patents related tol I prior to the filing of his petition was in error or not in compliance 
with applicable law or USCIS policy. 
Finally, we note that the Petitioner submits a copy of what he claims to be the amended filing of his 
2019 tax return, which now shows on Schedule C that his company B- is engaged in "electrician 
service" rather than 'janitorial services" as did the initially filed copy. However, as noted above, we 
do not consider new facts or evidence with a motion to reconsider. Further, even if we were to consider 
this evidence, it would fall far short of resolving the multiple inconsistencies and material 
misrepresentations in the record. 
III. CONCLUSION 
The Petitioner has not established that our previous 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. He has therefore not overcome our finding that he willfully misrepresented 
material facts in seeking eligibility as an individual of exceptional ability and a national interest waiver 
of that classification's job offer requirement. 
ORDER: The motion to reconsider is dismissed. 
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