dismissed EB-2 NIW Case: Legal Administration

U.S. Citizenship 
and Immigration 
Services 
In Re: 18104284 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : SEP. 21, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a legal administrator, seeks second preference immigrant classification as an advanced 
degree professional and as an individual of exceptional ability, as well as a national interest waiver of 
the job offer requirement attached to this employment-based, "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 Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The Petitioner appealed the matter to us, and we dismissed the appeal, concluding 
that while the Petitioner had established that he was an advanced degree professional, he was not 
eligible for a national interest waiver of the job offer. 1 The matter is now before us on a motion to 
reopen and a motion to reconsider. On motion, the Petitioner submits a brief and a personal statement 
in support of his assertion that he qualifies for a national interest waiver. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motions. 
I. MOTIONS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). In addition, a motion to reconsider must (1) 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 Services (USCIS) policy, and (2) 
establish that the decision was incorrect based on the evidence in the record of proceedings at the time 
of the initial decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these requirements 
and demonstrates eligibility for the requested immigration benefit. 
1 See In Re: ID# 8847145 (AAO FEB. 11, 2021) . 
II. LAW 
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. ... 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. 
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 (AAO 2016).2 Dhanasar states that, after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (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. 
The first prong, substantial merit and national importance, focuses on the specific endeavor that the 
foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas 
such as business, entrepreneurialism, science, technology, culture, health, or education. In 
determining whether the proposed endeavor has national importance, we consider its potential 
prospective impact. 
2 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 l&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT). 
2 
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine 
whether he or she is well positioned to advance the proposed endeavor, we consider factors including, 
but not limited to: the individual's education, skills, knowledge and record of success in related or 
similar efforts; a model or plan for future activities; any progress towards achieving the proposed 
endeavor; and the interest of potential customers, users, investors, or other relevant entities or 
individuals. 
The third prong requires the petitioner to demonstrate 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. In performing 
this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign 
national's qualifications or the proposed endeavor, it would be impractical either for the foreign 
national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming 
that other qualified U.S. workers are available, the United States would still benefit from the foreign 
national's contributions; and whether the national interest in the foreign national's contributions is 
sufficiently urgent to warrant forgoing the labor certification process. In each case, the factor(s) 
considered must, taken together, indicate 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 
III. ANALYSIS 
As an initial matter, we note that the review of any motion is narrowly limited to the basis for the prior 
adverse decision. Accordingly, we examine any new facts and arguments to the extent that they pertain 
to our prior dismissal of the Petitioner's appeal. 
On motion, the Petitioner submits a brief and a personal statement explaining why he believes he is 
qualified for a national interest waiver. However, the Petitioner does not provide new facts related to 
our prior decision, nor has he demonstrated that we erred in our previous analysis based on the record 
before us on appeal. 
The Petitioner intends to work as a legal administrator. In our prior decision, we noted that although 
the Director's decision stated that the Petitioner had met the requirements of Dhanasar 's first prong, 
it provided no rationale for the finding. Upon de novo review, we determined that the Petitioner did 
not show how he intended to develop improved processes or advances either to the field of legal 
administration or to the practice oflaw that would result in national or global implications within those 
particular fields. Additionally, we noted that while the Petitioner indicated that his endeavor would 
ultimately involve practicing law with a partner, the record did not elaborate on how many other U.S. 
workers would be employed as a result of the Petitioner working as a legal administrator or ultimately 
as an attorney, nor did the record show that such work would have potential, substantial positive 
economic effects, and whether those effects would be in an economically depressed area. We 
concluded that the Petitioner did not establish that the proposed endeavor has both substantial merit 
and national importance, as required by the first Dhanasar prong, and reserved our opinion regarding 
whether the record satisfies the remaining Dhanasar prongs. 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
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A. Motion to Reopen 
A motion to reopen is based on documentary evidence of new facts. 8 C.F.R. § 103.5(a)(2). 
On motion , the Petitioner submits a two-page personal statement , titled "Supplemental Affidavit ," 
which restates his academic and professional accomplishments to date. Regarding his future work, 
the Petitioner states as follows: 
As a legal administrator , I could assist staff attorneys with the client interview , do legal 
research, draft correspondence , prepare and assemble document s for submission to 
Court, and gather evidence and legal authorities for briefs . My dedication in law has 
not only theoretically will [sic] improve the legal education of this country in the future 
but most importantly has in the process completely and realistically re-created the 
young lives of law student's worth living . Law will be an extremely challenging and 
competitive career to make but I remain unwavering in my belief that I am competent 
and driven enough to excel at it. 
He further states that he believes that continuing a career in law in the United States "would be 
stimulating , personally challenging but overall, very fulfilling , and of national importance as well as 
offering a string basis for a career in the profession for the future ." He states that "in addition to 
'enhancing the U.S. business industry' and 'helping to improve cross-border business transactions,' 
my proposed endeavor offers substantial foreign investment activities to the nation , as Philippines 
(home country) is one of key investors within the nation' s food industry and import sector." 
In our previous decision , we noted that the Petitioner's ultimate model or plan for future activities was 
to pass the California Bar Examination and become a lawyer. In the brief accompanying his motion, 
the Petitioner states that his dream of becoming a lawyer and setting up a law firm "were just an 
option ," and he intended to work as a legal administrator for an existing law firm for at least two years 
to gain relevant experience . 
While his assertions are noted , the Petitioner does not contest our findings relating to any specific 
documentation or offer further arguments demonstrating that our analysis under Dhana sar's first 
prong was in error. Our appellate decision concluded that while the Petitioner's statements reflected 
his intention to provide legal administration service s to his employers until such time that he could 
establish his own law firm, he had not offered sufficient information and evidence to demonstrate that 
his propo sed endeavor had substantial merit , or that the prospective impact of his propo sed endeavor 
rises to the level of national importance. We further determined that without sufficient information or 
evidence regarding any projected U.S. economic impact or job creation attributable to his future work, 
the record did not show that benefits to the U.S. regional or national economy resulting from the 
Petitioner 's legal services would reach the level of "substantial positive economic effects" contemplated 
by Dhanasar. 
On motion, the Petitioner does not offer new facts or evidence relevant to our aforementioned findings. 
Instead, the Petitioner generally claims in both his brief and accompanying personal statement that his 
dedication to law will improve the legal education United States and will enhance U.S. business by 
promoting cross-border business transactions. These assertions alone do not demonstrate the national 
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importance of his proposed endeavor, or that his proposed endeavor has substantial merit. The 
Petitioner's motion does not include new facts supported by documentary evidence that overcome the 
grounds underlying our previous decision and that render him eligible under the first prong of the 
Dhanasar analytical framework. 
B. Motion to Reconsider 
A motion to reconsider must specify the factual and legal issues that were decided in error or 
overlooked in our prior decision. 
Here, the Petitioner asserts in his brief that our determination that he intended to work as a legal 
administrator until he passed the State Bar of California and became a lawyer was erroneous. In our 
prior decision, we noted that the Petitioner specifically stated, "I intend to work as legal administrator 
in a [l]aw [f]irm or organization ... until such time I have taken the California Bar Examination and 
become a lawyer." We farther noted that the record contained a fictitious business name statement 
filed in September 2019 and valid for five years for the business name of "[E-L-] (J.D) [sic] and 
Associates," indicating the Petitioner's address of record as the principal place of business. 
Considered collectively, we acknowledged that the Petitioner's ultimate goal was to establish his own 
law firm and practice law once he passed the bar exam. On motion, the Petitioner asserts that, contrary 
to our determination, he "intend[ s] to work in a highly respected and established law firm for the 
advancement of my legal career opportunities for at least two years." 
We recognize the Petitioner's assertion that he intends to initially work as a legal administrator in a 
law firm to gain relevant knowledge that will ultimately help advance his own legal career. Whether 
he is providing services as a legal administrator or ultimately as a lawyer is somewhat irrelevant, 
however, as we previously acknowledged and again agree that his proposed endeavor is to provide 
legal services to his employers and clients. The question here is whether his proposed endeavor has 
substantial merit and national importance. 
In dismissing the appeal, we determined that the Petitioner did not establish how the endeavor would 
farther human knowledge through research, had the potential to create a cultural impact, improve 
health or education, or other factors that would support a conclusion that the proposed endeavor has 
substantial merit. See Dhanasar, 26 I&N Dec. at 889. We farther determined, after considering the 
entirety of the Petitioner's plan for future activities, that the record did not demonstrate that his 
proposed endeavor had national importance. 
On motion, the Petitioner does not directly address or contest our determination that he did not 
establish that the proposed endeavor has substantial merit. While the Petitioner's general assertion of 
error regarding our determination regarding the endeavor's national importance is noted, he does not 
cite to any relevant law, regulation, or precedent establishing that our previous findings were based on 
an incorrect application of the law, regulation, or USCIS policy. Nor does the motion demonstrate 
that our decision was erroneous based on the evidence before us at the time of the decision. In our 
prior decision, we determined that the Petitioner did not show that his proposed endeavor would result 
in national or global implications within the field of legal administration or the practice of law. Here, 
the Petitioner does not contest our findings or offer farther arguments demonstrating that our analysis 
under Dhanasar' s first prong was in error. The Petitioner instead broadly claims that the previously 
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submitted documentation establishes eligibility, and emphasizes that his primary aim, as outlined in 
his personal statement, is to promote cross-border commercial activities and legal administration for 
business organizations. 
The Petitioner has not met the requirements for a motion to reconsider as he has not shown that we erred 
in our previous analysis based on the record before us on appeal. Further, the motion to reconsider does 
not establish that our previous findings were based on an incorrect application of law, regulation, or 
USCIS policy, and the Petitioner does not refer to any legal authority to demonstrate that we erred in 
denying his appeal. The Petitioner does not argue or point to how we incorrectly applied law or policy 
in our prior decision, as required for a motion to reconsider. Disagreeing with our conclusions without 
showing that we erred as a matter of law or pointing to policy that contradicts our analysis of the 
evidence is not a ground to reconsider our decision. See Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 
2006) (finding that a motion to reconsider is not a process by which the party may submit in essence, 
the same brief and seek reconsideration by generally alleging error in the prior decision). Here, the 
Petitioner did not demonstrate that we erred in either misapplying law or policy or failing to address 
prior arguments or evidence. Accordingly, the Petitioner has not demonstrated that his proposed work 
meets the "substantial merit" and "national importance" elements of the first prong of the Dhanasar 
framework. 4 
Accordingly, the Petitioner has not shown proper cause for reopening the proceedings or reconsidering 
our decision on the issue of whether he qualifies for a national interest waiver. 
IV. CONCLUSION 
The Petitioner's motions do not include new information or evidence that overcomes the grounds 
underlying our previous decision and do not show that our previous decision was based on an incorrect 
application of law or policy. 5 The record does not demonstrate that the Petitioner has met the first prong 
set forth in the Dhanasar analytical framework, and we find that he has not established he is eligible for 
or otherwise merits a national interest waiver as a matter of discretion. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
4 Similarly, in Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893. 
5 The regulation at 8 C.F.R. § 103.S(a)(l )(iii) requires the motion to 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 proceedings and, if so, the court, 
nature, date, and status or result of the proceeding." In addition to the deficiencies noted above, the Petitioner did not 
include the required statement; therefore, his motion does not meet the applicable requirements. See 8 C.F.R. § 103 .5( a)( 4). 
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