dismissed EB-2 NIW Case: Law

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: NOV 2 9 2013 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
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 (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish 
agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law 
or policy to your case or if you seek to present new facts for consideration, you may file a motion to 
reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or 
Motion (Form I-290B) within 33 days of the date of this decision. Please review the Form I-290B 
instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and 
other requirements. See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
.))_{) (!j}J}V)()L, 
C 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The petitioner filed a motion 
to reopen and reconsider the director's decision. The director 
. dismissed the motion. The petitioner appealed that decision to the Administrative Appeals Office 
(AAO). The AAO dismissed the appeal. The petitioner filed a motion to reopen and reconsider the 
AAO's decision. The AAO dismissed 
the motion. The matter is now before the AAO on a second 
motion to reopen and reconsider. The motion will be dismissed, the previous decision of the 
AAO will be affirmed, and the petition will remain denied. 
The petitioner seeks classification under 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 asserts 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. The director found that the petitioner qualifies for classification as 
a member of the professions holding an advanced degree, but that the petitioner has not 
established that an exemption from the requirement of a job offer would be in the national 
interest of the United States. Subsequent decisions have not disturbed the director's original 
decision. 
According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts to be provided in 
the reopened proceeding and be supported by affidavits or other documentary evidence. Motions 
for the reopening of immigration proceedings are disfavored for the same reasons as are petitions 
for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. 
Doherty, 502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to 
reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. 
A motion to reconsider must state the reasons for reconsideration and be supported by any 
pertinent precedent decisions or legal citation to establish that the decision was based on an 
incorrect application of law or U.S. Citizenship and Immigration (USCIS) policy. A motion to 
reconsider a decision on an application or petition must, when filed, also establish that the 
decision was incorrect based on the evidence of record at the time of the initial decision. 
8 C.F.R. § 103.5(a)(3). A motion to reconsider contests 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, 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 could not have been 
addressed by the party. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). 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. !d. 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. 
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On motion, the petitioner submits a statement contesting the AAO's May 7, 2013 decision 
dismissing the motion. The petitioner states that "the AAO should have granted the underlying 
motion and then reviewed the whole case on the merits formally/officially, rather than dismissed the 
underlying motion." 
The AAO dismissed the previous motion because it did not state any new facts or include any new 
evidence material to the petition. Therefore, the filing did not meet the regulatory requirements of 
a motion to reopen at 8 C.F.R. § 103.5(a)(2). In addition, the petitioner did not demonstrate that 
the AAO's appellate decision was incorrect based on the evidence of record at the time of the 
decision. Therefore, the filing did not meet the regulatory requirements of a motion to 
reconsider at 8 C.F.R. § 103.5(a)(3). Accordingly, the AAO dismissed the previous motion for 
not meeting applicable requirements pursuant to the regulation at 8 C.F.R. § 1 03.5(a)( 4). 
Fmihem1ore, the AAO's May 7, 2013 decision did review "the whole case on the merits" of the 
petitioner's national interest waiver claim in pages 3 - 12 of the decision. The AAO specifically 
and thoroughly discussed the documentary evidence and arguments submitted in support of the 
petitimi and determined that the petitioner had failed to establish his eligibility for the national 
interest waiver. The AAO determined that the petitioner had not submitted evidence 
demonstrating that his qualifications met the third prong of the national interest waiver test 
required by In reNew York State Dept o[Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. 
Comm'r 1998). The petitioner's instant motion does not contest the AAO's specific findings 
regarding his ineligibility for a waiver of the job offer requirement in the national interest of the 
United States. 
A review of the documentation that the petitioner submits with the instant motion reveals no 
facts or evidence that could be considered "new " under 8 C.F.R. § 1 03.5(a)(2). In addition, the 
petitioner has failed to support his motion with any legal argument, precedent decisions, or other 
comparable evidence to establish that the AAO 's May 7, 2013 decision was based on an 
incorrect application of law or USCIS policy. In addition, the petitioner has not established that 
the AAO' s previous decision was incorrect based on the evidence of record at the time of the 
decision. Moreover, the instant motion does not contain the statement about whether or not the 
validity of the unfavorable decision has been or is the subject of any judicial proceeding as required 
by the regulation at 8 C.F.R. § 103.5(a)(l)(iii)(C). For this additional reason, the motion must be 
dismissed. 
The regulation at 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable 
requirements shall be dismissed." Accordingly, the motion will be dismissed, and the previous 
decisions of the director and the AAO will not be disturbed. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the 
immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende , 26 I&N 
Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
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