dismissed EB-2 NIW Case: Medicine

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 29, 2024 In Re: 29698885 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a pediatrician who intends to work in the United States as a registered nurse, seeks 
employment-based second preference (EB-2) 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 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 did not 
establish 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 subsequent appeal. The matter is now before us on 
combined motions to reopen and reconsider. 8 C.F.R. § 103.5. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
combined motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable . Instead, "new facts" are facts that are relevant to the issue(s) raised on motion and 
that have not been previously submitted in the proceeding, which includes the original petition. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
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). We do not consider new facts or evidence in a motion 
to reconsider. 
In requesting a national interest waiver of the job offer requirement, a petitioner must establish that 
they merit a discretionary waiver of the requirement "in the national interest." Section 203(b )(2)(B)(i) 
of the Act. While neither the statute nor the pertinent regulations define the term "national interest," 
Matter of Dhanasar, 26 l&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating 
national interest waiver petitions. Matter ofDhanasar states that U.S. Citizenship and Immigration 
Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if the petitioner 
demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
In our appellate decision, we determined that the Petitioner's proposed endeavor has substantial merit. 
However, we concluded that the Petitioner did not establish that her proposed endeavor has national 
importance under the first prong of the Dhanasar analysis. Because the documentation in the record 
did not establish the national importance of her proposed endeavor as required by the first prong of the 
Dhanasar precedent decision, the Petitioner had not demonstrated eligibility for a national interest waiver. 
We concluded that further analysis of her eligibility under the second and third prongs outlined in 
Dhanasar would serve no meaningful purpose. 2 
In her brief on motion the Petitioner states that, following the filing of her appeal, she filed a new 
Form I-140, again requesting a national interest waiver of the job offer requirement. That application 
was subsequently approved on May 5, 2023, although we dismissed her appeal on July 7, 2023. The 
Petitioner asserts that the approval of a subsequent petition is a material fact that demonstrates that she 
"meets all legal requirements of a national interest waiver" and that our dismissal of her appeal is 
"conflicting and antagonistic." 
The Petitioner's assertion that USCIS has approved another pet1t10n based on similar facts is 
unpersuasive. We are not required to approve applications or petitions where eligibility has not been 
demonstrated, merely because of prior approvals that may have been erroneous. See Matter ofChurch 
Scientology Int'!, 19 I&N Dec. 593, 597 (Comm'r 1988); see also Sussex Eng'g, Ltd. v. Montgomery, 
825 F .2d 1084, 1090 ( 6th Cir. 1987). Furthermore, we are not bound to follow a contradictory decision 
of a service center. La. Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, at *2 (E.D. 
La. 2000). Therefore, we do not consider the approval of the Petitioner's later filed petition to be a 
material fact that warrants reopening the current proceedings. 
On motion the Petitioner submits a brief and references evidence already in the record. The 
deficiencies in the already submitted evidence have been identified and discussed in our prior decision. 
The Petitioner's brief on motion does not overcome those deficiencies and does not establish that her 
proposed endeavor has national importance. Therefore, the Petitioner has not stated new facts 
supported by documentary evidence that warrant reopening our prior decision. 
1 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCTS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 We declined to reach but hereby reserved remaining arguments concerning eligibility under the second and third 
Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds 
when another independent issue is dispositive of the appeal); see also Matter ofL-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 
2015) ( declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
2 
Although the Petitioner indicated on Form 1-290B, Notice of Appeal or Motion, that she was filing a 
combined motion to reopen and motion to reconsider, her brief only addresses her eligibility for a 
motion to reopen based on new facts, specifically the approval of a subsequent petition. The Petitioner 
does not assert that our previous appeal decision was based on an incorrect application of law and/or 
policy. Nor does the Petitioner identify specific errors or explain how our prior appeal decision did 
not follow the regulations and policy guidance. Upon review, we do not find any error or incorrect 
application of law or policy. The Petitioner has not met the requirements of a motion to reconsider. 
For the reasons discussed above, the Petitioner has not shown proper cause for reopening the 
proceedings or reconsideration of our prior decision. Therefore, the Petitioner has not established 
eligibility for the benefit sought. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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