dismissed EB-2 NIW Case: Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 23017343 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 26, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a marketing manager, seeks second preference immigrant classification as a member 
of the professions holding an advanced degree, as well as a national interest waiver of the job offer 
requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b )(2), 8 U.S.C. § 1 l 53(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. We dismissed the Petitioner's appeal and two subsequent motions. The matter is 
now before us on a motion to reopen and reconsider our latest decision. 
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 motion to reopen and 
reconsider. 
I. MOTION REQUIREMENTS 
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. 
Under 8 C.F.R. § 103.5(a)(l) and 8 C.F.R. § 103.8(b ), in general, motions must be filed within 33 days 
of the adverse decision. In response to the coronavirus (COVID-19) pandemic, however, USCIS 
extended the deadline for filing a Form I-290B, Notice of Appeal or Motion. A petitioner may file a 
Form I-290B within 60 calendar days from the date of the adverse decision, if USCIS issued the 
decision between March 1, 2020, and January 15, 2022 . 1 As relating to a motion to reopen the 
1 USCIS Extends Flexibility for Responding to Agency Requests , availab le at https://www .uscis.gov/newsroom /alerts/uscis­
extends-flexibility -for-responding-to -agency-requests (accessed on October 25, 2022). 
proceeding, the filing deadline may be excused in the discretion of USCIS if a petitioner demonstrates 
that the delay was reasonable and was beyond their control. 8 C.F.R. § 103.5(a)(l). 
II. ANALYSIS 
We dismissed the Petitioner's appeal on December 22, 2020. 2 We received the Petitioner's first 
motion on February 24, 2021, more than 63 days after we dismissed the appeal. Accordingly, we 
dismissed the Petitioner's first motion as untimely on June 21, 2021. The Petitioner filed a second 
motion on August 19, 2021. In our March 2022 decision, we dismissed the Petitioner's second motion 
because he had not shown that our June 2021 decision was in error. We further explained that, even 
if we had excused his untimely motion, his submission did not offer new facts or evidence indicating 
that he qualified for classification as a member of the professions holding an advanced degree. 3 
A. Motion to Reconsider 
With the present motion, the Petitioner submits a statement repeating earlier claims that he meets all 
three prongs of the Dhanasar analytical framework. In his statement, he reiterates that his work will 
benefit the U.S. economy by increasing the flow of money into the U.S. on a national level, 
contributing to U.S. gross domestic product, and employing U.S. workers. He also references 
previously submitted documentation, and recounts his past marketing experience and projects in the 
Philippines. 
The review of any motion is narrowly limited to the basis for the prior adverse decision. Accordingly, 
we examine any new arguments to the extent that they pertain to our dismissing the Petitioner's second 
motion. In the current motion, the Petitioner requests that we review previously submitted evidence 
and makes arguments relating to his eligibility under the Dhanasar analytical framework. However, 
the Petitioner does not explain or demonstrate how we erred in dismissing his second motion. 
2 See our decision dismissing the appeal at TD# 8468042 (AAO DEC. 22, 2020). Our appellate decision indicated the 
Petitioner had not established that he satisfied the regulatory requirements for classification as a member of the professions 
holding degree. Furthermore. as the Petitioner had not met the requisite first prong of the Dhanasar analytical framework. we 
concluded that he had not established he is eligible for or otherwise merits a national interest waiver as a matter of 
discretion. See Matter of Dhanasar, 26 T&N Dec. 884 (AAO 2016). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as 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. 
3 At the time of filing the petition on October 15, 2018, the Petitioner presented a diploma indicating that he received a Bachelor 
of Science degree in Business Administration from in the Philippines in March 2014. While he provided 
his school transcript from the Petitioner did not provide an academic evaluation to establish his 
diploma's equivalency to a U.S. baccalaureate degree. See 8 C.F.R. § 204.5(k)(3)(i)(B). Furthermore, the record reflects 
that he received the aforementioned bachelor's degree on March 23, 2014. Even if the Petitioner had provided an academic 
evaluation indicating that his bachelor's degree froml I is equivalent to a U.S. baccalaureate degree, he 
had not demonstrated at least five years of progressive post-baccalaureate experience in his specialty at the time he filed 
the petition. With respect to the Petitioner's five years of progressive post-baccalaureate experience in his specialty, he 
must demonstrate such experience at the time of filing. See 8 C.F.R. § 103.2(b )(1 ). Accordingly, the Petitioner has not 
established that he qualifies for the EB-2 classification as a member of the professions holding an advanced degree. 
2 
The Petitioner also restates that his first motion was sent on time and that the filing delay was 
reasonable and beyond his control. He cites to multiple cases in which the courts held that untimely 
filings should be excused. Our prior decision explained, however, that even if we were to excuse the 
late filing of the first motion to reopen, the record did not establish that the Petitioner qualifies for the 
EB-2 classification as a member of the professions holding an advanced degree. We further indicated 
that the Petitioner had not presented new facts on motion to establish that at the time he filed the 
petition, he satisfied the regulatory requirements for the EB-2 classification. 
The Petitioner's arguments in support of the present motion to reconsider do not establish that we erred 
in upholding our determination that he had not demonstrated eligibility for the EB-2 classification as a 
member of the professions holding an advanced degree. The Petitioner therefore has not met the 
requirements for a motion to reconsider as he has not shown that we erred in our prior decision based on 
the record before us at the time of the decision. In addition, the present motion to reconsider does not 
establish that our prior decision was based on an incorrect application oflaw, regulation, or USCIS policy. 
B. Motion to Reopen 
The present motion does not offer new facts or evidence indicating that the Petitioner qualifies for 
classification as a member of the professions holding an advanced degree. He therefore has not 
overcome our prior determination on this issue. 
III. CONCLUSION 
The Petitioner has not demonstrated that we erred as a matter of law or USCIS policy, nor has he 
established new facts relevant to our decision that would warrant reopening of the proceedings. 
Consequently, we have no basis for reopening or reconsideration. The Petitioner's appeal therefore 
remains dismissed, and his underlying petition remains denied. 
ORDER: The motion to reconsider is dismissed. 
FURTHER ORDER: The motion to reopen is dismissed. 
3