dismissed EB-2 NIW Case: Law

(b)(6)
DATE: MAY 0 7 2013 OFFICE: TEXAS 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.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.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, 
~~\~ 
~on Rosenbe~ 
Acting Chief, Administrative Appeals Office 
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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 matter is now before the AAO on a motion to reopen and 
reconsider. The AAO will dismiss the motion. 
The petitioner seeks classification under section 203(b )(2) of the hnmigration 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. 
On motion, the petitioner submits a statement and a map showing the geographic boundaries of United 
States courts of appeals and district courts. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.P.R. § 103.5(a)(2). 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 Service 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.P.R. § 103.5(a)(3). A motion 
that does not meet 
applicable requirements shall be dismissed. 8 C.P.R.§ 103.5(a)(4). 
The petitioner's latest motion does not state any new facts or include any new evidence material to 
the petition. Therefore, the filing does not meet the regulatory requirements of a motion to reopen at 
8 C.P.R. § 103.5(a)(2). Furthermore, the petitioner has not shown that the AAO's decision was 
incorrect at the time of filing. Therefore, the filing does not meet the regulatory requirements of a 
motion to reconsider at 8 C.P.R.§ 103.5(a)(3). Accordingly, the AAO will dismiss the motion under 
the regulation at 8 C.P.R.§ 103.5(a)(4). 
Even if the petitioner's filing had met the requirements of a motion to reopen or a motion to reconsider, 
the petition would not be approvable. Apart from the procedural question of whether the latest filing 
qualifies as a motion to reopen or to reconsider, the merits of the petition do not warrant approval of 
the national interest waiver. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability.-
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(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 of Job Offer-
(i) ... 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. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
In reNew York State Dept. of Transportation (NYSDOT), 22 I&N Dec. 215 (Act. Assoc. Comm'r 
1998), has set forth several factors which must be considered when evaluating a request for a national 
interest waiver. First, the petitioner must show that the alien seeks employment in an area of substantial 
intrinsic merit. Next, the petitioner must show that the proposed benefit will be national in scope. 
Finally, the petitioner must establish that the alien will serve the national interest to a substantially 
greater degree than would an available United States worker having the same minimum qualifications. 
(b)(6)
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While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
that the alien's past record justifies projections of future benefit to the national interest. The petitioner's 
subjective assurance that the alien will, in the future, serve the national interest cannot suffice to 
establish prospective national benefit The intention behind the term "prospective" is to require future 
contributions by the alien, rather than to facilitate the entry of an alien with no demonstrable prior 
achievements, and whose benefit to the national interest would thus be entirely speculative. 
The AAO also notes that the USCIS 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, aliens 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 alien seeks classification as an alien of exceptional ability, or as a member of the 
professions holding an advanced degree, that alien cannot qualify for a waiver just by demonstrating 
a degree of expertise significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the Form 1-140 petition on August 3, 2009. On that form, the petitioner 
described himself as a "Self-employed Lawyer" who intends to "Practice international trade law 
(public aspect) specializing in 'Trade Adjustment Assistance' law, policy and practice." In a 
separate statement, the petitioner elaborated on this description: 
President Obama signed the Trade and Globalization Adjustment Assistance Act of 
2009 on February 17, 2009 .... 
This new legislation has changed/improved the Trade Adjustment Assistance (T AA) 
Program ... [u]nder [which] ... U.S. Workers, Firms, Communities and Farmers 
may be eligible for a variety of T AA services and benefits if they were laid off/lost 
job as a result of increased foreign imports (foreign trade) or if their companies 
shifted production out of the United States to certain foreign countries .... 
U.S. workers, firms, communities and farmers ... affected by increased import or 
shift in production to China are now ... able to file a petition [with] the U.S. 
Department of Labor for TAA benefits and services. The decision of the U.S. 
Department of Labor on a T AA petition is appealable to the U.S. Court of 
International Trade, and thereafter the U.S. Court of Appeals for the Federal Circuit. 
... More and more affected U.S. workers, firms, communities and farmers will file 
petitions for T AA benefits. The increasing needs for counsels (lawyers) to advise and 
represent clients in the process are also growing. 
The above assertions address the intrinsic merit of the petitioner's intended occupation. With 
respect to national scope, the petitioner (describing himself in the third person) stated: 
(b)(6)
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[The petitioner] seeks employment permanently as a lawyer advising and representing 
clients (U.S. workers, firms, communities and farmers throughout the United States, 
who are negatively affected by foreign trade) to prepare and file "Trade Adjustment 
Assistance" Petitions or Appeal Cases to the U.S. Department of Labor, the U.S. 
Court of International Trade, and the U.S. Court of Appeals for the Federal Circuit. 
The petitioner observed that administrative or legal decisions arising from the appeals process have 
the potential to form nationally binding precedent. 
The above information concerns the intrinsic merit and national scope of T AA Program law. 
Because no blanket waiver exists for attorneys who specialize in such law, the petitioner must 
establish that his own qualifications meet the third prong of the NYSDOT national interest test. 
The petitioner observes that he holds an S.J.D. degree, "the terminal/most advanced degree in the 
field of Law in the United States," entitling him to use the honorific title "Dr." before his name. The 
petitioner cited statistics showing that "only 93 terminal (S.J.D.) degrees were awarded per year in 
the whole United States from 1970-2006," and claimed: "The S.J.D. degree is rarely awarded and 
only granted to extremely limited talents with outstanding achievement and intellectual and 
academic excellence." That conclusion relies on the unproven assumption that the number of 
degrees awarded in a particular field is directly proportional to the difficulty of obtaining that degree, 
and the level of merit required to earn that degree. 
The petitioner also asserted that he achieved his law degrees at a relatively young age (he was 27 
years old when he filed the petition). This fact may indeed speak well of the petitioner's academic 
aptitude, and bode well for a future law career, but it is not, itself, an influential achievement in the 
field of law. 
Under the plain wording of section 203(b )(2)(A) of the Act, a member of the professions holding an 
advanced degree (such as a lawyer holding an S.J.D. degree) is normally subject to the job offer 
requirement. The petitioner's advanced degree itself, therefore, cannot be a factor in granting a 
waiver of that requirement. Likewise, the petitioner's assertion that very few attorneys hold such a 
degree does not establish eligibility. Holding a degree that most in the occupation do not hold may 
contribute to a finding of exceptional ability under the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A), 
but an alien of exceptional ability, like a member of the professions holding an advanced degree, is 
presumptively subject to the statutory job offer requirement. 
Under NYSDOT, it cannot suffice for the petitioner to be well qualified to practice a useful 
profession. The petitioner's subjective assurance that the alien will, in the future, serve the national 
interest cannot suffice to establish prospective national benefit. While the national interest waiver 
hinges on prospective national benefit, it clearly must be established that the alien's past record 
justifies projections of future benefit to the national interest. The inclusion of the term "prospective" 
is used here to require future contributions by the alien, rather than to facilitate the entry of an alien 
with no demonstrable prior achievements, and whose benefit to the national interest would thus be 
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entirely speculative. NYSDOT, 22 I&N Dec. 219. USCIS does not seek a quantified threshold of 
experience or education, but rather a past history of demonstrable achievement with some degree of 
influence on the field as a whole. Academic performance, measured by such criteria as grade point 
average, cannot alone satisfy the national interest threshold or assure substantial prospective national 
benefit. In all cases the petitioner must demonstrate specific prior achievements which establish the 
alien's ability to benefit the national interest. /d. at 219, n.6. 
The petitioner asserted that he will be self-employed, and therefore no employer can seek labor 
certification on his behalf. USCIS acknowledges that there are certain occupations wherein 
individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor 
certification. While this fact will be given due consideration in appropriate cases, the inapplicability 
or unavailability of a labor 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. 
The petitioner claimed that his "outstanding and unique intellectual and academic excellence has 
been solidly proved by his unusual and significant past demonstrable achievement and record." The 
petitioner did not describe any past record or prior experience at a TAA attorney. Instead, the 
petitioner asserted that he "is taking substantial steps in establishing his own legal practice," having 
"formed/incorporated a professional service corporation." The petitioner, therefore, did not establish 
any record of specific prior achievements in his intended field. Instead, he asserted that his S.J.D. 
degree has placed him in a good position to begin a legal career. 
The petitioner stated: "At the age of 26, [the petitionerl was invited by the American Bar 
Association (ABA) to be an oral argument Judge for the 
_ which is one of the largest moot court competitions in the United States." To 
support this claim, the petitioner submitted a printout of an electronic mail message from the ABA 
that reads, in part: 
... I would like to invite you to participate as an oral argument judge for the 
With 190 teams competing, the is one of the largest moot court competitions 
in the countrv. Teams from law schools in 15 states are preparing to compete in the 
We need approximately 80 judges for the regional competition. If you have any 
colleagues who may be interested in participating as a volunteer judge, please 
forward this message to them. Judging assignments will be made on a first-come, 
first-served basis. 
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The petitioner did not show what criteria the ABA used to select judges for the competition, or how 
many invitations the ABA sent out. The request to forward the invitation to other attorneys, without 
first clearing them through the ABA, does not suggest that the invitation reflected any sort of 
recognition or exclusive honor. Therefore, there is no basis to conclude that the invitation from the 
ABA is strong evidence in the petitioner's favor. 
The petitioner stated: "At the age of 27, [the petitioner] was invited by the President of the United 
Nations General Assembly to represent 400,000 American lawyers, law graduates and law students 
at the 'United Nations Conference on the World Financial and Economic Crisis and its Impact on 
Development."' The letter of invitation appears to be a "form" letter; it begins with the generic 
salutation "Dear Sir/Madam," and states: "travel arrangements and accommodation in 
are your own responsibility," although the petitioner resided in and therefore 
would have needed no travel arrangements or accommodation. The invitation letter invited the 
petitioner to "participate" in the conference, but did not state that the petitioner would "represent 
400,000 American lawyers, law graduates and law students" in any official capacity. As with the 
ABA letter, the record does not show how many people received this invitation, or how they were 
chosen to receive it. 
The petitioner did not claim any experience working with TAA cases. Rather, he expressed 
confidence that, given his background, he was likely to excel in that branch of law. 
The petitioner then submitted a number of supplemental submissions, some consisting of general 
background information and others further documenting the petitioner's credentials as an attorney. 
On January 20, 2010, the director issued a request for evidence, stating: "Please submit evidynce to 
establish that you have a past record of specific prior achievement with some degree of influence on 
your field." In response, the petitioner stated that he is not "a scientific researcher who publishes 
research outcomes in journals," and therefore the requirement of "specific prior achievement with 
some degree of influence on the field as a whole may not be completely applicable to the special 
situations in this case." The NYSDOT guidelines are not specific to scientific researchers. The AAO 
notes that the beneficiary in the original NYSDOT case was an engineer, not a researcher. In the 
present matter, the petitioner stated that an attorney's work on a TAA case could result in a binding 
precedent that would apply to future TAA proceedings. In this way, the petitioner himself identified 
a way in which a TAA attorney could influence the field. It remains that NYSDOT is a binding 
precedent decision affecting all national interest waiver petitions, 1 and the petitioner cannot exempt 
himself from key NYSDOT provisions. 
The petitioner repeated the assertion that he earned his "rarely awarded" S.J.D. degree at age 27, and 
stated: "Balancing the age of the beneficiary and his accomplishments, any reasonable person with 
common sense would have to agree that it does be [sic] a reasonable projection of the beneficiary's 
prospective substantially great benefits to the United States, if the beneficiary continues serving in 
1 Section 203(b )(2)(B)(ii) of the Act provides an exception for certain physicians, which does not apply here. 
(b)(6)
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the United States as an attorney." The petitioner has not provided adequate support for this 
contention. It cannot suffice for him to assert that "common sense" compels the conclusion. 
The petitioner also stated that his familiarity with Chinese language and culture would give him an 
advantage when dealing with TAA issues involving China. National background is not an 
influential achievement. Also, it is relevant to repeat here that the petitioner claimed no experience 
handling TAA cases. The assertion that he would be especially adept at handling them, therefore, 
amounts to unsupported speculation. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soffici, 22 
I&N Dec. 158, 165 (Comm'r 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 
(Reg'l Comm'r 1972)). Without evidence regarding the petitioner's past performance as a lawyer 
(rather than as a law student or as a representative of a bar association), there is little foundation for 
the petitioner's expectations of future performance as a lawyer. 
The director denied the petition on March 11, 201 0, stating that the petitioner's general assertions 
about his youth and his subject matter expertise do not establish that holding the petitioner to the job 
offer requirement would adversely affect the national interest. On motion from that decision, the 
petitioner contended that the director "inappropriately interpreted and applied [NYSDOI] ... to the 
special and different facts of this specific case." The petitioner repeated the assertion that labor 
certification was not an option because he is self-employed, and contended that NYSDOT applies 
only where labor certification is possible. As quoted previously, NYSDOT contains specific 
language addressing self-employed aliens who cannot obtain labor certification. By statute, the 
threshold for the waiver is the national interest, not self-employment or the unavailability of labor 
certification. 
The petitioner stated that, as a sworn officer of the court, "it is the beneficiary's right to freely 
choose employment, including being self-employed." An attorney's right to self-employment does 
not imply a right to immigration benefits. Congress specified the means by which professionals with 
advanced degrees (such as attorneys) can immigrate to the United States, and the petitioner can only 
receive employment-based immigration benefits within the statutory framework. The petitioner's 
intention to establish his own practice does not, as the petitioner claims, compel the government to 
grant him permanent immigration benefits under the equal protection clause of the Constitution. 
The petitioner submitted documentation regarding activities he undertook after the petition's August 
3, 2009 filing date, inrhuf1no- fnrther events at the United Nations and iudging another moot court · 
comQetition. In the 
the petitioner announced his intention to publish his doctoral thesis. 
These new exhibits added little of weight to the record, being largely similar to previously submitted 
materials. The materials showed that the petitioner continued to be active in local bar activities, but 
did not establish what impact the petitioner's work has had, or will have, on TAA law (which was 
the original premise for the waiver application). Furthermore, an applicant or petitioner must 
establish that he or she is eligible for the requested benefit at the time of filing the benefit request. 
(b)(6)
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8 C.F.R. § 103.2(b)(l). USCIS cannot properly approve the petition at a future date after the 
petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). The petitioner's activities in late 2009 and early 2010 cannot 
retroactively establish eligibility as of August 2009 when he filed the petition. 
In June 2010, the petitioner submitted additional materials in support of the motion. The USCIS 
regulation at 8 C.F.R. § 103.3(a)(2)(vii) permits the petitioner to supplement a previously filed 
appeal, with a showing of good cause, but there is no provision to permit the petitioner to 
supplement a previously filed motion to reopen or reconsider. Therefore, the director was under no 
obligation to consider the materials in the petitioner's June 2010 supplemental submission. 
The June 2010 submission documented events that took place not only after the petition's filing date, 
but after the filing date of the motion. Three letters, all dated late May 2010, confirmed the 
petitioner's appointment to various positions within the ABA Section of International Law. A 
_ ,--.... publication of an article by the petitioner in 
the then-upcoming 
The director dismissed the petitioner's motion on July 7, 2010, stating that the petitioner's attempt to 
"bypass" NYSDOT did not meet the requirements of a motion to reopen or reconsider. 
On appeal from that decision, the petitioner repeated the assertion that the director's decision 
deprived him of "[t]he constitutional right of being a self-employed lawyer." The petitioner also 
noted that 27% of attorneys are self-employed. The petitioner failed to establish that an attorney's 
self-employment generates a Constitutional entitlement to immigration benefits. Under the USCIS 
regulation at 8 C.F.R. § 103.3(c), precedent decisions such as NYSDOT are binding on all USCIS 
employees, including the director and the AAO. 
The petitioner repeated the incorrect assertion that NYSDOT is "only applicable to a scientific 
researcher." As noted previously, the beneficiary in NYSDOT was not a scientific researcher, and 
nothing in the language of that decision limited its applicability to scientific researchers. As a 
precedent decision, NYSDOT is binding on all national interest waiver petitions except for certain 
physicians covered by different statutory terms. 
The petitioner asserted that the director "applied a somewhat higher standard of proof' instead of the 
preponderance of evidence standard, and "mismatch[ ed] facts in the precedent decision to the unique 
and distinguishable facts of this case." A Department of Homeland Security precedent decision 
describes the preponderance of evidence standard of proof: 
The "preponderance of the evidence" standard requires that the evidence demonstrate 
that the applicant's claim is "probably true," where the determination of "truth" is 
made based on the factual circumstances of each individual case. . . . Thus, in 
adjudicating the application pursuant to the preponderance of the evidence standard, 
the director must examine each piece of evidence for relevance, probative value, and 
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credibility, both individually and within the context of the totality of the evidence, to 
determine whether the fact to be proven is probably true. 
Even if the director has some doubt as to the truth, if the petitioner submits relevant, 
probative, and credible evidence that leads the director to believe that the claim is 
"more likely than not" or "probably" true, the applicant or petitioner has satisfied the 
standard of proof. 
Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). In this instance, the petitioner has not 
submitted any evidence of achievements or experience as an attorney handling T AA cases. Instead, 
he has maintained that, because he earned an S.J.D. degree at a young age, "common sense" dictates 
that he will prove to be a superior attorney. Chawathe does not state or imply that the petitioner's 
own expectations about his future career are sufficient to establish by a preponderance of evidence 
that the petitioner qualifies for the benefit sought. 
The petitioner later supplemented the appeal with further materials that post-dated the filing of the 
oetition. such as an article that the petitioner wrote, entitled l ___ _ --~ 
' The petitioner did not 
explain the relevance of this 2010 article to the TAA Program upon which he had first based the 
waiver request. 
The AAO dismissed the petitioner's appeal on February 17, 2012. That decision read, in part: 
The appeal under consideration by the AAO is not an appeal of the director's initial 
decision on the merits of the petition. The petitioner did not appeal that decision, but 
chose to file a motion instead. The director, in turn, dismissed that motion. On appeal, 
therefore, is not the denial of the petition but rather the dismissal of the motion. Before 
the AAO can give any consideration to the merits of the underlying petition, the 
petitioner must first establish that the director erred by dismissing the motion. 
The director's dismissal notice quoted extensively from the regulations at 8 C.P.R. 
§ 103.5(a), including the requirements of motions to reopen and to reconsider. The 
director's July 7, 2010 decision included a brief discussion of the NYSDOT precedent 
decision, but the director did not reopen the petition and then re..:deny it on the merits. 
Rather, the director dismissed the motion for failure to meet the requirements of a 
motion. On appeal, the petitioner does not even address, much less rebut, the director's 
finding that the motion failed to meet applicable requirements. Instead, the petitioner 
offers multiple assertions to the effect that the director should have approved the petition 
in the first place. 
The petitioner cannot overcome the dismissal of his motion by filing a new appeal that 
seeks readjudication of the underlying petition, as though the motion and its dismissal 
never happened. The petitioner's opportunity to dispute the original decision was the 
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30-day period immediately following the service of that decision. See 8 C.P.R. §§ 
103.3(a)(2)(i) and 103.5(a)(1)(i). During that period, the petitioner chose to file a 
motion instead of an appeal, and his April 2010 filing was therefore subject to the 
requirements of a motion under the regulations quoted previously. The dismissal of the 
motion did not reset the clock for the petitioner to appeal the original decision. When 
the petitioner filed his appeal in August 2010, he could only properly appeal the 
director's dismissal notice of July 2010, not the denial notice of March 2010. 
Issues not briefed on appeal by a pro se litigant are deemed abandoned. Timson v. 
Sampson, 518 F.3d 870, 874 (11th Cir.2008) (per curiam). When an appellant fails to 
offer argument on an issue, that issue is abandoned. Sepulveda v. U.S. Atty. Gen., 401 
P.3d 1226, 1228 n. 2 (11th Cir.2005). In this instance, the petitioner, on appeal, did 
not contest or address the director's finding that the filing failed to meet the 
requirements of a motion. The petitioner has, therefore, abandoned that issue. 
In his latest motion, the petitioner asserts that 
"the petitioner, on appeal, has in fact clearly contested 
and rebutted the service center director's findings that the motion failed to meet applicable 
requirements." Specifically, the petitioner observes that, on appeal, he repeatedly disputed the 
director's reliance on NYSDOT. The director, however, did not dismiss the motion because of 
NYSDOT. Rather, the director stated that the petitioner had failed to meet the regulatory 
requirements of a motion as set forth in 8 C.F.R. §§ 103.5(a)(2) and (3). The petitioner's attempts to 
distinguish the present proceeding from NYSDOT are immaterial to the director's finding that the 
filing failed to meet the requirements of a motion. The dismissal rested on procedural grounds. The 
petitioner's issues withNYSDOT are merits issues, rather than procedural ones. 
The petitioner asserts that he did raise a procedural issue, by stating that the director held the 
petitioner to a higher standard of proof than the preponderance of evidence. For a filing to qualify as 
a motion to reconsider, however, the petitioner cannot simply raise procedural concerns. As stated 
above, under the USCIS regulation at 8 C.P.R. § 103.5(a)(3), 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 Service 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. The petitioner has not 
met this requirement. Instead, the petitioner has asserted that "[a]ny reasonable person with 
common sense would agree" that he qualifies for the waiver. Such a claim does not meet the 
preponderance of evidence standard, and it does not establish that the director's decision was 
incorrect based on the evidence of record at the time of the initial decision. As stated previously, the 
petitioner's unsupported claims do not meet the burden of proof in these proceedings. Matter of 
Soffici, 22 I&N Dec. 165; Matter of Treasure Craft of California, 14 I&N Dec. 190. 
Throughout this 
proceeding, the petitioner's key assertions have been: (1) his professional 
credentials self-evidently establish that he is a superior attorney who will, consequently, benefit the 
United States; (2) NYSDOT only applies to research scientists, and therefore does not pertain to 
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attorneys; and (3) the equal protection clause of the Constitution permits attorneys to be self­
employed, and therefore the director cannot deny the petitioner immigration benefits without 
interfering with the petitioner's constitutional rights. For reasons explained above, none of these 
contentions withstands scrutiny. The petitioner has not established eligibility for the national interest 
waiver, and the director therefore properly denied the petition. On the basis of the evidence 
submitted, the petitioner has not established that a waiver of the job offer requirement will be in the 
national interest of the United States. 
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. 
ORDER: The motion is dismissed.