dismissed EB-2 NIW Case: Law

(b)(6)
DATE: JUN 2 8 2013 Office: VERMONT SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
))UPlLJnvL . 
fl Ron Rosenberg 
l Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa 
petition on June 22, 2007. The petitioner subsequently filed an appeal on July 23, 2007, which the 
Administrative Appeals Office (AAO) summarily dismissed on December 8, 2009. On February 12, 
2010, the AAO reopened the matter and adjudicated the appeal on its merits. On February 24, 2010, 
the petitioner filed a motion to reconsider. The AAO granted the motion and reaffirmed the denial of 
the petition on October 4, 2011. The matter is now before the AAO on a second motion to reconsider. 
The motion to reconsider will be dismissed. The previous AAO decision will be affirmed, and the 
petition will remain denied. 
The petitioner seeks classification pursuant to section 203(b )(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. 
The petitioner seeks employment as an attorney. The petitioner did not submit an approved labor 
certification with the petition. The director found that the petitioner did not qualify for classification 
as a member of the professions holding an advanced degree, and came to no conclusion regarding an 
alternative finding that the petitioner qualified an alien of exceptional ability. The director found 
that the petitioner had not shown that an exemption from the requirement of a job offer, and thus of a 
labor certification, is in the national interest of the United States. 
In prior decisions, the AAO found that the petitioner had failed to establish sufficient work 
experience, and then found that the petitioner's intended work as an attorney lacks national scope. In 
its most recent decision, the AAO explained that the initial petition, a self-petition unsupported by a 
certified alien employment certification that explicitly did not seek a national interest waiver from 
that requirement, was never approvable. 1 The AAO noted the petitioner's failure to cite any legal 
authority for the proposition that he did not need a national interest waiver from the alien 
employment certification requirement 
because it was not a requirement for self-employed petitioners. 
Despite the petitioner's failure to request a national interest waiver initially or on appeal, the AAO 
considered the issue in light of the prior adjudications based on that issue and concluded that the 
petitioner had not demonstrated eligibility for that waiver. 
On motion, the petitioner asserts that he is, in fact, eligible for the national interest waiver of the 
alien employment certification based on a 1992 federal court decision and recently articulated U.S. 
Citizenship and Immigration Services (USCIS) policy regarding entrepreneurs. 
I. THE LAW 
Section 203(b) of the Act states in pertinent part that: 
1 The regulation at 8 C.F.R. § 204.5(k)(l) provides that, unless seeking an exemption from the alien 
employment certification requirement pursuant to section 203(b )(2)(B) of the Act, the national 
interest waiver provision, only a "United States employer" may file a petition under section 
203(b )(2) of the Act. 
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(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(ii) 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 n.ational 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 of job offer. 
(ii) ... the 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. 
II. ISSUES ON MOTION 
On motion, the petitioner continues to assert that he qualifies as an alien of exceptional ability. As 
explained in the AAO's most recent decision, however, this issue is moot because the record 
establishes that the petitioner holds a Juris Doctor degree from The petitioner's 
occupation falls within the pertinent regulatory definition of a profession. The petitioner thus qualifies 
as a member of the professions holding an advanced degree. The issue under consideration is whether 
there is a requirement for submission of an alien employment certification approved by the Department 
of Labor (DOL) and, if so, whether the petitioner qualifies for a waiver of that requirement in the 
national interest. Previously the petitioner has asserted 
that no such requirement exists. On motion, the 
petitioner now abandons that claim and asserts in the alternative that he qualifies for the national 
interest waiver. 
ill. REQUIREMENTS FOR A MOTION 
In order to properly file a motion, the regulation at 8 C.P.R. § 103.5(a)(l)(iii) requires that the motion 
must be "[a]ccompanied by a statement about whether or not the validity of the unfavorable decision 
has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or 
result of the proceeding." Furthermore, the regulation at 8 C.P.R. § 103.5(a)(4) requires that "[a] 
motion that does not meet applicable requirements shall be dismissed." 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or U.S. 
Citizenship and Immigration (USCIS) policy. 8 C.P.R. § 103.5(a)(3). A motion to reconsider contests 
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the correctness of the original decision based on the previous factual record, as opposed to a motion to 
reopen which seeks a new hearing based on new or previously unavailable evidence. See Matter of 
Cerna, 20 I&N Dec. 399,402-403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in 
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal arguments" that may be raised in a motion to reconsider should flow from new law or 
a de novo legal determination reached in its decision that the party could not have addressed previously. 
Further, a motion to reconsider is not a process by which a party may submit, in essence, the same brief 
presented on appeal and seek reconsideration by generally alleging error in the prior decision. Matter 
of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Instead, the moving party must specify the factual and 
legal issues raised on appeal that were decided in error or overlooked in the initial decision or must 
show how a change in law materially affects the prior decision. !d. at 60. 
IV. ANALYSIS 
With the current motion, the petitioner failed to submit a statement regarding whether the validity of the 
AAO's decision has been, or is, subject of any judicial proceeding. This shortcoming alone allows 
USCIS to dismiss the motion. See 8 C.P.R. § 103.5(a)(4). Notwithstanding this omission, the motion 
fails to meet the specific 
requirements of a motion to reconsider. 
As stated above, the petitioner initially filed the Form 1-140 petition by checking box "d," which 
states that the petitioner "is NOT seeking a National Interest Waiver." (Emphasis in original.) In 
response to the director's July 3, 2006 Request for Evidence, the petitioner stated that his self­
employment since 2004 "justifies the consideration of a national interests waiver." Based on that 
statement, the director issued a second Request for Evidence on February 1, 2007, advising of the 
requirements for the waiver. In response and again on appeal, the petitioner reverted to the claim on 
the initial petition that he was not seeking a national interest waiver because no alien employment 
certification was required for self-employed 
petitioners . 
With the present motion, the petitioner abandons his prior claims that an alien employment 
certification is not required for self-employed petitioners. Rather, he now acknowledges that self­
employed petitions filing in their own behalf must seek a national interest waiver of that 
requirement. He relies on two authorities for the conclusion that he has established eligibility for 
that waiver. 
First, he relies on Bulk Farms, Inc. v. Martin, 963 F.2d 1286, 1288 (9th Cir. 1992), in which the 
Ninth Circuit upheld the Department of Labor's ban on self-employment based alien employment 
certification. The Ninth Circuit stated: 
As a practical matter, where an employer is indistinguishable from the alien seeking 
the job in question, there is reason for the employer to abuse the process. The 
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!d. 
regulation's ban on self-employment makes it less likely that the certification process 
will be manipulated and "sham" employee searches conducted. 
As with the Board of Labor Certification Appeals (BALCA) decisions on which the petitioner 
previously relied, although the Ninth Circuit upheld the Department of Labor's ban on alien 
employment certifications filed by self-employed individuals, that determination does mean that self­
employed individuals are exempt from the alien employment certification requirement altogether or 
that USCIS must waive that requirement in the national interest. As stated in the most recent AAO 
decision 
in the matter currently on motion, nothing in the legislative history suggests that the national 
interest waiver was intended simply as a means for employers (or self-petitioning aliens) to avoid the 
inconvenience of the labor certification process. Matter of New York State Dep't of Trans., 22 I&N 
Dec. 215, 223 (Act. Assoc. Comm'r 1998) (NYSDOT). The Acting Associate Commissioner 
specifically stated: 
[USCIS] acknowledges that there are certain occupations wherein individuals are 
essentially self-employed, and thus would have no U.S. employer to apply for an [alien 
employment] certification. While this fact will be given due consideration in 
appropriate cases, the inapplicability or unavailability of an alien employment 
certification cannot be viewed as sufficient cause for a national interest waiver; the 
petitioner still must demonstrate that the self-employed alien will serve the national 
interest to a substantially greater degree than do others in the same field. 
!d. at 218, n.5. Significantly, NYSDOT, a precedent decision that is binding on all USCIS personnel 
pursuant to 8 C.F.R. § 103.3(c), is more recent than the federal court decision on which the petitioner 
relies. The Acting Associate Commissioner is presumed to be aware of existing Department of Labor 
policy in denying alien employment certification for self-employed individuals when he issued the 1998 
decision. Cf Lorillard v. Pons, 434 U.S. 575, 580-81 (1978). Moreover, the footnote quoted above 
reveals that the Acting Associate Commissioner was very aware that an alien must have a U.S. 
employer to apply for alien employment certification. 
The petitioner also relies on an August 2, 2011 press conference where U.S. Citizenship and 
Immigration Services (USCIS) Director and U.S. Secretary of Homeland Security announced an 
initiative to remove barriers to the immigration of entrepreneurs. USCIS policy towards 
entrepreneurs is available on the agency's website. See http://www.uscis.gov/portal/site 
/uscis/menuitem.2182d258012d5eb62b6859c7526eOaaO/?vgnextoid=839a16ee27678310VgnVCM1 
OOOOOb92ca60aRCRD&vgnextchannel=7cf8760c124a7310VgnVCM10000025e6aOOaRCRD. The 
guidance acknowledges that alien employment certification is difficult for entrepreneurs and states 
that most entrepreneurs filing under section 203(b )(2) of the Act will need to seek a waiver in the 
national interest pursuant to section 203(b)(2)(B) of the Act. See http://www.uscis.gov/ 
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portal/site/uscis/menuitem. 7 49cabd81f5ffc8fba713d 1 0526e0aa0/?vgnextoid=Ocf8f16d4d06e31 OV gn 
VCM100000082ca60aRCRD&vgnextchannel-Ocf8f16d4d06e310VgnVCM100000082ca60aRCRD. 
For petitioners with an advanced degree like the petitioner in this matter, the guidance does not 
indicate that every entrepreneur qualifies for the waiver. Rather, the guidance states that the 
petitioner must still meet the three prongs set forth in NYSDOT, 22 I&N Dec. at 215. See 
http://www.uscis.gov/portal/site/uscis/menuitem.2f0cb9a8ddc86a6d856fed10526e0aa0/?vgnextoid=48 
5ce899de46e31 OV gn VCM1 00000082ca60aRCRD&vgnextchannel=Ocf8f16d4d06e31 OV gn VCM1 000 
00082ca60aRCRD. While the petitioner also claims to be an alien of exceptional ability, USCIS 
guidance provides the same national interest waiver requirements for those petitioners. ld.2 See also 
NYSDOT, 22 I&N Dec. at 218 (noting that by statute, "exceptional ability" is not, by itself sufficient 
cause for a national interest waiver). 
First, the policy the petitioner cites does not support his previous eligibility claim, that as a self­
employed individual there is no requirement for an alien employment certification and, thus, no 
waiver of that requirement is necessary. The website pages cited above unambiguously state that the 
classification sought does require an alien employment certification unless the petitioner establishes 
eligibility for a national interest waiver pursuant to section 203(b)(2)(B) of the Act. As stated above, 
a motion to reconsider is not the appropriate forum to raise a legal argument that could have been 
raised earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. at 220. Thus, the petitioner has 
not filed a proper motion to reconsider and the AAO may dismiss the motion on that ground alone. 
Even if the AAO were to consider the national interest issue given prior adjudications that addressed 
it, the motion to reconsider does not establish that the AAO's most recent decision incorrectly 
applied NSDOT based on the record before it. As stated in the AAO's most recent decision, 
NYSDOT, 22 I&N Dec. at 217-18, provides three factors to be considered in adjudicating requests 
for a national interest waiver. First, the petitioner must show that the alien seeks employment in an 
area of substantial intrinsic merit. !d. at 217. Next, the petitioner must show that the proposed benefit 
will be national in scope. !d. Finally, the petitioner seeking the waiver must establish that the alien will 
serve the national interest to a substantially greater degree than would an available U.S. worker having 
the same minimum qualifications. !d. at 217-18. At issue is whether this petitioner's contributions in 
the field are of such unusual significance that the petitioner merits the special benefit of a national 
interest waiver, over and above the visa classification he seeks. By seeking an extra benefit, the 
petitioner assumes an extra burden of proof. A petitioner must demonstrate a past history of 
achievement with some degree of influence on the field as a whole. Id. at 219, n. 6. 
2 
When navigating the guidance, the user accesses diverging pathways explaining the different 
requirements for advanced degree professionals and aliens of exceptional ability, but both pathways 
eventually link back to the same page with the national interest waiver requirements. 
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On motion, the petitioner asserts that his potential to create jobs satisfies all three prongs set forth in 
NYSDOT. 3 While the practice of law and the creation of jobs at a law firm have substantial intrinsic 
merit, the petitioner has not specifically addressed how the proposed benefit will be national in scope 
or how he will serve the national interest to a substantially greater degree than would an available 
U.S. worker having the same minimum qualifications. The petitioner relies on recent guidance 
designed to help entrepreneurs understand the preexisting requirements for a national interest waiver. 
The petitioner, however, has not submitted the types of evidence the new guidance suggests as 
applicable on the website cited above, such as media reports, attestations from experts as to the 
national importance of the petitioner's work, published articles citing the petitioner's work, grants or 
other funding, contracts, patents and licenses.4 See http://www.uscis.gov/portal/site/uscis/menuitem.2 
f0cb9a8ddc86a6d856fed1 0526e0aa0/?vgnextoid=485ce899de46e31 OV fl VCM1 00000082ca60aRCRD 
&vgnextchannel=Ocf8f16d4d06e31 OV gn VCM1 00000082ca60aRCRD. 
As the petitioner has failed to cite any legal authority to establish that the previous AAO decision was 
based on an incorrect interpretation of law or policy, the most recent filing does not meet the 
requirements for a motion to reconsider and must be dismissed. 
V. SUMMARY 
The petitioner failed to submit a statement about whether or not the validity of the unfavorable decision 
has been or is the subject of any judicial proceeding and, if so, the court, nature, date, and status or 
result of the proceeding as required under 8 C.F.R. § 103.5(a)(1)(iii). In addition, the petitioner raises 
legal assertions that could have been raised previously. Finally, the petitioner did not cite any legal 
authority to establish that previous AAO decision was based on an incorrect interpretation of law or 
policy. For all of these reasons, the filing does not meet the requirements of a motion to reconsider and 
must be dismissed. 
3 The petitioner also reasserts that there are humanitarian bases for the waiver. These bases were 
addressed in the AAO's most recent decision and on motion the petitioner cites no legal authority to 
suggest the AAO's discussion of those grounds was based on an erroneous application of law or 
policy. 
While the petitioner has submitted published material about the need for affordable legal services, 
this material does not relate to the petitioner personally or otherwise establish that what he proposes 
to do will be national in scope. As stated in the AAO's previous decision, NYSDOT explicitly states 
that the pro bono services of a single lawyer are too attenuated at the national level. 22 I&N Dec. at 
217, n.3. 
5 The petitioner has been afforded multiple opportunities to provide evidence to establish eligibility 
for the national interest waiver under NYSDOT as follows: in response to the director's February 1, 
2007 Request for Evidence, on appeal, and in support of the previous motion. Thus, the AAO would 
not consider any new evidence supporting a future motion to reopen. See Matter of Soriano, 19 I&N 
Dec. 764, 766 (BIA 1988). 
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The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. The motion to reconsider will be 
dismissed. 
ORDER: The motion to reconsider is dismissed. The AAO's decision of October 4, 2011 is 
affirmed. The petition remains denied.