dismissed EB-2 NIW Case: Occupational Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 22, 2024 In Re: 30242137 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an occupational therapist, seeks employment-based second preference (EB-2) 
immigrant classification as a member of the professions holding an advanced degree. See Immigration 
and Nationality Act (the Act) section 203(b )(2), 8 U.S.C. § 1153(b )(2). The Petitioner also seeks a 
national interest waiver of the job offer requirement that is attached to this EB-2 immigrant 
classification. See section 203(b )(2)(B)(i) of the Act, 8 U.S.C. § 1 l 53(b )(2)(B)(i). U.S. Citizenship 
and Immigration Services (USCIS) may grant this discretionary waiver of the required job offer, and 
thus of a labor certification, when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish eligibility for a national interest waiver because she did not demonstrate the national 
importance of her proposed endeavor. We dismissed a subsequent appeal. 
The matter is now before us on combined motions to reopen and reconsider. 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. The Petitioner bears the burden of proof to demonstrate eligibility by a 
preponderance of the evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon 
review, we will dismiss the combined motions. 
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). 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, 1 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. 
In dismissing the Petitioner's appeal, we recognized the gravity of the topic of healthcare in the United 
States and acknowledged the Petitioner's assertion that her small business will contribute to 
1 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
improvements in healthcare, noting the Director determined in the denial that her proposed endeavor 
has substantial merit. However, we also detailed the reasons why the evidence of record did not show 
how the Petitioner's proposal to operate a small wellness care business will benefit the United States 
on a national level. We explained that, in determining national importance, the relevant question is 
not the importance of the industry or profession in which the individual will work; instead, we focus 
on "the specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N 
Dec. at 889. We further observed that the forecasts outlined in the Petitioner's business plan did not 
establish that the benefits to the regional or national economy would reach the level of "substantial 
positive economic effects" contemplated by Dhanasar. Id. at 890. 
We ultimately concluded that the Petitioner has not shown that her proposed endeavor to open a 
wellness clinic would nationally impact the healthcare industry or benefit the regional or national 
economy. Since the record did not establish the national importance of the Petitioner's specific 
proposed endeavor, as required under Dhanasar 's first prong, she had not demonstrated eligibility for 
a national interest waiver as a matter of discretion. We also reserved her appellate arguments regarding 
her eligibility under Dhanasar 's second and third prongs, as considering them would have served no 
meaningful purpose. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (stating that agencies are not 
required to make "purely advisory findings" on issues that are unnecessary to the ultimate decision); 
see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) ( declining to reach alternative issues 
on appeal where an applicant is otherwise ineligible). For the sake of brevity, we incorporate our 
previous analysis of the record and will repeat only certain facts and evidence as necessary to address 
the Petitioner's assertions on motion. Our previous decision in this matter was ID# 28020213 (AAO 
AUG. 07, 2023). 
A. Motion to Reopen 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
On motion, the Petitioner submits a statement in which she reiterates the significance of her proposed 
endeavor to own and operate a women's wellness clinic in I I Virginia. She cites statistics 
concerning healthcare costs in the United States and the importance of preventative care for women 
as valuable contributors to the U.S. economy. She also submits information concerning financial 
incentives offered to new small business owners in Virginia. While some of this material is new to 
the record, the Petitioner's motion does not provide new facts supported by documentation that 
establish the national importance of her proposed endeavor. The Petitioner's discussions of the 
healthcare industry and opportunities for new small businesses in Virginia do not refute or overcome 
the conclusions in our previous decision. The Petitioner does not sufficiently explain how this 
information demonstrates that her endeavor will have a national impact. Accordingly, while the 
Petitioner has offered new evidence, this documentation does not demonstrate new facts showing that 
she meets the "national importance" requirement ofDhanasar's first prong, and therefore she has not 
overcome our prior determination. The motion to reopen is therefore dismissed pursuant to 8 C.F.R. 
§ 103.5(a)(4). 
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B. Motion to Reconsider 
A motion to reconsider must establish that our prior 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). Our review on motion is limited to reviewing our 
latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
On motion, while the Petitioner reasserts that her proposed endeavor has national importance, she does 
not contend that our decision to dismiss her appeal was erroneous, nor does she explain whether our 
decision was incorrect based on the evidence in the record at the time of the decision. We stress that 
to establish merit for reconsideration of our latest decision, a petitioner must do both of the following: 
state the reasons why the petitioner believes the most recent decision was based on an incorrect 
application of law or policy; specifically cite laws, regulations, precedent decisions, and/or binding 
policies they believe we misapplied in our prior decision. The Petitioner has not done so here. 
In light of the above, we conclude that this motion does not meet all the requirements of a motion to 
reconsider and must therefore be dismissed pursuant to 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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