dismissed EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 21, 2024 In Re: 32959646 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an attorney, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or, in the alternative, as an 
individual of exceptional ability in the sciences, arts or business. See Immigration and Nationality Act 
(the Act) section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2). The Petitioner also seeks a national interest waiver 
of the job offer requirement that is attached to this EB-2 immigrant classification. See section 
203(b)(2)(B)(i) of the Act, 8 U.S.C. § 1153(b)(2)(B)(i). U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, 
when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner merits a discretionary waiver of the job offer requirement "in the national 
interest." The record reflects that the Petitioner filed subsequent combined motions to reopen and 
reconsider. The Director dismissed the motion to reopen, after which, the Petitioner filed an appeal. 
In our decision, we withdrew the Director's decision and remanded the matter, as the Director did not 
address the Petitioner 's motion to reconsider. Following our remand of the matter, the Director 
dismissed the motion to reconsider, concluding that the documentation provided by the Petitioner in 
support of her motion to reconsider failed to establish that the requirements for filing a motion to 
reconsider had been met. The Director further noted that the Petitioner had not explained how USCIS 
misinterpreted policy, law, or precedent decisions in concluding that the petitioner was not qualified 
for the requested classification. 8 C.F .R. § 103 .5. The matter is now before us again on appeal, where 
we will consider her appeal as it relates to the Director's decision to deny the Petitioner's motion to 
reconsider. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's , Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 
8 C.F.R. § 103.5(a)(2). 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). 
On appeal, the Petitioner submits a brief and additional evidence. In her brief, she contends that the 
Director's decision to dismiss her motion to reconsider was issued one day after her motions were 
reopened, and that the Director copied his previous decision and disregarded our decision. Further, 
the Petitioner states that the Director did not issue any request for evidence or offer any additional 
analysis of her arguments. In the Director's decision on her motion to reconsider, the Director 
acknowledged that the Petitioner had submitted additional evidence and provided an analysis of that 
evidence and how it related to the initial decision denying her petition. We note that our prior decision 
did not require the Director to take any specific action, aside from issuing a decision on the motion to 
reconsider, which the Director did. 1 The Petitioner contends that the Director did not follow the "two 
part evaluation process" for adjudicating her petition; however, the Director did not deny the petition 
based on the Petitioner's eligibility for the underlying EB-2 classification, which is what the Petitioner 
is referencing here. The Director had originally concluded that she did not establish her eligibility 
under the Dhanasar framework, and as such she did not qualify for a national interest waiver. 
Although the Petitioner states that she received a "lack of proper representation" which "significantly 
prejudiced her case and deprived her of a fair opportunity to present her claim" she has not established 
that the Director erred in dismissing her combined motions for not meeting the filing requirements. 
The Petitioner alleges that the Director gave less weight to "the probative evidence because the 
[Petitioner] is a woman" but does not provide any evidence to support this assertion. Our review of 
the Director's decisions issued regarding her petition further do not support her assertion. Although 
the Director's decision on her motion to reconsider discussed the statement and evidence she submitted 
with her motions, he indicated that as the Petitioner's motions did not meet the requirements of a 
motion to reopen or reconsider, the underlying decision to deny her petition remained undisturbed. 
On appeal, the Petitioner's brief and evidence primarily continues to assert her eligibility and 
qualifications for the requested classification but does not establish that the Director erred in 
dismissing her motion to reconsider. As such, we will dismiss her appeal. 
ORDER: The appeal is dismissed. 
1 Further, our prior decision on her initial appeal noted that the Petitioner's previous brief primarily addressed the Director's 
denial of her petition, which was not before us. We also did not determine that the Director erred in his dismissal of the 
Petitioner 's motion to reopen. 
2