dismissed EB-2 NIW Case: Nutrition

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: DEC. 02, 2024 In Re: 34891822 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a nutnt10nist, 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 Texas Service Center denied the petition, concluding that the record did not 
establish that a waiver of the required job offer, and thus of a labor certification, would be in the 
national interest. We dismissed a subsequent appeal. The matter is now before us on combined 
motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
combined motions. 
I. LAW 
A motion to reopen is based on new facts that are supported by documentary evidence, and a motion 
to reconsider is based on an incorrect application of law or policy. The requirements of a motion to 
reopen are located at 8 C.F.R. § 103.5(a)(2), and the requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3). 
II. ANALYSIS 
The Petitioner, a nutritionist, endeavors to start a business, I Ito provide "a complete 
nutritional solution through modular services," which includes upgrading "the quality control, 
handling, and storage of food served in schools and supermarkets." The Petitioner intends to provide 
services ranging from food safety consulting to training, nutritional advice, cooking classes, and 
semmars. 
The Director concluded that although the Petitioner had established the substantial merit of her 
proposed endeavor, she had not demonstrated its national importance, that she is well-positioned to 
advance her proposed endeavor, or that, on balance, it would be beneficial to the United States to 
waive the requirements of a job offer, and thus of the labor certification. On appeal, we concurred 
with the Director that the Petitioner had not demonstrated the national importance of her proposed 
endeavor. As this basis for dismissal was dispositive of the Petitioner's appeal, we did not reach her 
arguments concerning the remaining prongs of the Dhanasar framework. 
A. Motion to Reopen 
On motion to reopen, the Petitioner asserts her newly submitted evidence includes two signed letters 
from potential clients, specifically letters from the founder of I I 
and the Director ot1 and a contract with Ifrom July 2022. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We interpret "new facts" to mean those that are relevant to the issues raised on motion 
and that have not been previously submitted in the proceeding, which includes within the original 
petition. Reasserting previously stated facts or resubmitting previously provided evidence does not 
constitute "new fact." A motion to reopen that does not satisfy the applicable requirements must be 
dismissed. 8 C.F.R. § 103.5(a)(4). 
In this decision, we incorporate our prior decision by reference and repeat only certain facts and 
evidence as necessary to address the Petitioner's claims on motion. See, e.g., Matter ofS-M-, 22 I&N 
Dec. 49, 51 (BIA 1998) (noted that "statements in a brief, motion, or Notice of Appeal are not evidence 
and thus are not entitled to any evidentiary weight"). 
Here, the two signed letters submitted by the Petitioner on motion were previously submitted before 
the Director, so do not constitute "new facts" for the purposes of a motion to reopen. Similarly, the 
Petitioner's submitted consultation contract withl indicates the Petitioner 
provided nutritional services in developing menus. On motion, the Petitioner contends this contract 
demonstrates her "immediate impact on public health through nutrition education and consultancy in 
the [United States]" and "illustrat[ es] her active engagement in initiatives that align with public health 
goals. However, these factors are not related to whether the proposed endeavor itself has national 
importance, as considered under the first Dhanasar prong. Matter ofDhanasar, 26 I&N Dec. at 889. 
Rather, the Petitioner's contract submission relates to the second Dhanasar prong, which examines 
whether the Petitioner is well positioned to advance the proposed endeavor. Id. at 890. Specifically, 
the contract implicates the Petitioner's demonstration of success in efforts similar to her proposed 
endeavor, progress toward achieving her proposed endeavor, and the interest of potential customers 
or other entities in her endeavor. Id. In this matter, the Director previously determined the Petitioner 
had not demonstrated the national importance of her proposed endeavor and we concurred with the 
Director's determination. As this finding was dispositive of the Petitioner's appeal, we did not reach 
the Petitioner's eligibility under additional Dhanasar prongs. As such, the Petitioner's contract 
submitted on motion is not relevant to the issue raised on motion, whether the Petitioner's endeavor 
has national importance, and does not constitute "new facts." As the Petitioner's motion does not 
contain "new facts," it does not meet the requirements of a motion to reopen. 
B. Motion to Reconsider 
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On motion to reconsider, the Petitioner asserts her appeal was erroneously denied as the appropriate 
eligibility requirements were not applied. Rather, the Petitioner claims the requirements for 
employment categories other than the national interest waiver were applied and we "should not impose 
an unreasonable burden, such as a necessity of the petitioner [to] demonstrate extraordinary 
professional leadership in the market" or "future management of significant portions of the 
workforce." However, our previous decision does not contain any of the above requirements 
highlighted by the Petitioner, which relate to other employment categories. Upon review, the record 
demonstrates the appropriate national interest waiver requirements and preponderance of the evidence 
standard were applied in the appeal dismissal. 
The Petitioner claims no petitioner would be able to meet "the stratospheric national economic impact 
that the [o]fficers seem[] to require for approval." Dhanasar indicates "[a]n endeavor that has 
significant potential to employ U.S. workers or has other substantial positive economic effects, 
particularly in an economically depressed area, for instance, may well be understood to have national 
importance." Matter ofDhanasar at 890. The Petitioner contends the plain language of this citation 
evidences an endeavor's potential to employ one U.S. worker is sufficient to demonstrate national 
importance. However, this citation equates the significant potential to employ U.S. workers to a 
"substantial positive economic effect," while indicating that other, additional substantial positive 
economic effects may also demonstrate national importance. The Petitioner does not argue nor 
establish that an endeavor's potential to employ one U.S. worker is equivalent to a "substantial positive 
economic effect." In addition, Dhanasar' s use of the plural term in "significant potential to employ 
U.S. workers" rather than "worker" further indicates an endeavor's potential to hire a solitary worker 
would not be sufficient to establish national importance. We do not find error in our finding on appeal 
that the Petitioner has not demonstrated the benefits to the regional or national economy from her 
proposed endeavor would reach the level of substantial positive effects through employment levels or 
business activity contemplated by Dhanasar. 
Petitioner's counsel asserts on motion thatl Iwill have a widespread impact on society 
that extends beyond their clients as they will not only "offer classes and courses restricted to a physical 
classroom and her company's clients," but also "aim[] to further the technical field of nutrition in the 
U.S., which encompasses teaching, research, study groups, training, and public offerings on 
specialized portals for academic promotion." Petitioner's counsel's brief includes a new plan to 
disseminate nutritional knowledge through free online courses, an online portal, webinars and 
workshops, social media, marketing, community outreach and awareness campaigns, and email 
outreach. Also on motion, Petitioner's counsel indicates the Petitioner's intent to engage in nutritional 
research initiatives and policy development. On these bases, Petitioner's counsel argues the 
Petitioner's own nutritional teaching and research activities, unlike the petitioner in Dhanasar, rises 
to the level of national importance as she aims to further the nutritional field in the United States. 
However, the assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 
553,534 n.2 (BIA 1988). The record, apart from counsel's statements on motion, does not corroborate 
the Petitioner's intent to engage in nutritional research and policy work. Similarly, Petitioner's 
counsel's assertions on motion regarding the company's dissemination of nutritional knowledge 
exceeds the intentions presented previously in the company's business plan. A petitioner must 
establish eligibility for the benefit they are seeking at the time the petition is filed. See Matter or 
Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Accordingly, and in keeping with the 
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requirements of the motion to reconsider before us, we consider the record evidence only insofar as it 
relates to our July 2024 appeal decision. 
The Petitioner's previously submitted business plan, in relevant part, indicated 
would impart consulting for schools and supermarkets, courses and training for employees, and 
workshops and seminars for kids and their parents with some seminars and workshops "broadcasted 
online to leverage and maximize the value of the events" and some "developed for the online 
environment." In our appeal decision, we concluded the Petitioner had not demonstrated her proposed 
endeavor would sufficiently extend beyond her company and its clientele to impact the field of 
nutrition more broadly, at a level commensurate with national importance. On motion, Petitioner's 
counsel argues that though the business plan does not explicitly assert its online services would be 
accessible beyond its clients, it implies the online seminars, workshops, and webinars would be 
available to a broader audience. It is noted the business plan specifies website 
would be online scheduling-capable for commercial attendance, which appears to indicate the 
company's intent to further monetize its online services to customers. However, in any case, the 
Petitioner has not demonstrated disseminating her nutritional workshops, seminars, and webinars more 
broadly, even outside her clientele, would have broader implications for the field of nutrition. 
Dhanasar explains that teaching will not necessarily impact the field more broadly, in a manner which 
rises to the level of national importance. See Matter ofDhanasar at 893. Like teaching, in which the 
benefits generally affect the students taught, the services and training the Petitioner plans to provide 
benefit would benefit her clientele and website viewers. 
The Petitioner also asserts our appeal decision erroneously noted the Petitioner had not provided 
sufficient evidence in support of her proposed endeavor, as it is not required to "demonstrate through 
evidence the commencement of such plans nor financial founds [sic] to do so." However, our appeal 
decision required neither commencement of the Petitioner's proposed endeavor nor evidence of 
financial funding. Rather, we appropriately examined whether the evidence sufficiently demonstrated 
the proposed endeavor would offer a substantial economic benefit or impact the field more broadly, 
to the level of national importance. 
A motion to reconsider must: 1) state the reasons for reconsideration, 2) be supported by any pertinent 
precedent decision to establish that the decision was based on an incorrect application oflaw or policy, 
and 3) establish that the decision was incorrect based on the evidence in the record at the time of the 
decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider that does not satisfy these requirements must 
be dismissed. 8 C.F.R. § 103.5(a)(4). 
Upon review, our appeal decision thoroughly analyzed the national importance requirements laid out 
in the Dhanasar framework and considered the entirety of the record in the Petitioner's case. As the 
Petitioner has not established our prior decision dismissing her appeal contained errors of law or 
policy, or that the decision was incorrect based on the record at the time of the decision, it does not 
meet the requirements of a motion to reconsider. 
III. CONCLUSION 
Although the Petitioner submitted evidence in support of the motion to reopen, the Petitioner has not 
established this evidence consists of "new facts." On motion to reconsider, the Petitioner has not 
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established our previous decision was based on an incorrect application of law or policy at the time 
we issued our decision or otherwise incorrect. Therefore, the motion will be dismissed. 8 C.F.R. § 
103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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