dismissed EB-2 NIW Case: Organizational Psychology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 16, 2024 In Re: 30792104 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks classification under the employment-based, second-preference (EB-2) immigrant 
visa category and a waiver of the category's job-offer requirement. See Immigration and Nationality 
Act (the Act) section 203(b)(l)(B)(i), 8 U.S.C. § 1153(b)(l)(B)(i). U.S. Citizenship and Immigration 
Services (USCIS) has discretion to excuse job offers in this category - and thus related requirements 
for certifications from the U.S. Department of Labor (DOL)- if noncitizens demonstrate that waivers 
of these U.S.-worker protections would be "in the national interest." Id. 
The Director of the Texas Service Center denied the petition, and we dismissed the Petitioner's 
following appeal. See In Re: 28467050 (AAO Sep. 20, 2023). We affirmed the Director's decision 
that the Petitioner did not demonstrate the merits of a national interest waiver. Id. Specifically, we 
agreed with the Director that the Petitioner did not establish that her proposed U.S. work has "national 
importance." Id. 
The matter returns to us on the Petitioner's motion to reopen. Claiming ineffective assistance of 
counsel, the Petitioner contends that her prior lawyer misrepresented her proposed work's nature and 
did not present supporting evidence "in a cohesive manner." 
The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a 
preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon 
review, we conclude that she has not "substantially" complied with procedural requirements for 
motions involving claims of ineffective assistance of counsel nor established that prior counsel's 
performance prejudiced her. We will therefore dismiss the motion. 
I. LAW 
A motion to reopen must state new facts, supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). 
We review only our latest decision and grant a motion that satisfies these requirements and 
demonstrates eligibility for the requested benefit. 8 C.F.R. § 103.5(a)(l)(i); see also Matter ofCoelho, 
20 I&N Dec. 464, 473 (BIA 1992) (requiring new evidence that potentially changes the decision's 
outcome). 
II. ANALYSIS 
Noncitizens alleging ineffective assistance of counsel must "substantially" comply with the 
requirements described in Matter ofLozada , 19 I&N Dec. 637, 639 (BIA 1988). Dakane v. US. Att'y 
Gen. , 399 F.3d 1269, 1273-74 (11th Cir. 2005) (requiring "substantial , if not exact, compliance with 
the procedural requirements of Lozada"); see also Matter of Melgar, 28 l&N Dec. 169, 171 (BIA 
2020). Under Lozada, a motion alleging ineffective assistance of counsel must: 
• Include a noncitizen's affidavit detailing their agreement with the allegedly ineffective counsel 
regarding actions to be taken and any representations by counsel; 
• Demonstrate that the noncitizen informed counsel of the ineffectiveness allegations and 
provided the lawyer an opportunity to respond; and 
• Indicate whether a complaint was filed with appropriate disciplinary authorities regarding any 
violation of counsel's ethical or legal responsibilities, and if not, why not. 
Dakane, 399 F.3d at 1274 (quoting Matter ofLozada, 19 I&N Dec. at 639). 
A. Affidavit 
Consistent with Lozada, the Petitioner provided an affidavit stating that she hired prior counsel to 
represent her in these immigrant visa proceedings. The affidavit does not detail the terms of her 
agreement with prior counsel. But she submitted a copy of her written retainer agreement with the 
lawyer containing the pact's terms. The Petitioner also stated that, on the Internet, prior counsel 
claimed to be an "expert" in preparing and filing requests for national interest waivers. The Petitioner 
has therefore substantially complied with Lozada's first requirement. 
B. Notice to Prior Counsel 
The Petitioner claims that she notified prior counsel of the ineffectiveness allegations against the 
attorney. The Petitioner's written brief on motion states: 
[T]he attorney was informed of the claim of ineffective assistance of counsel. The 
Petitioner only informed her today [October 21, 2023] since the fonner counsel was 
trying to convince her to file a [] Motion[,] but after the Petitioner came across other 
[Internet] reviews where she feels people were in the same situation [as her], being told 
that this [petition denial] is a new trend and that the Attorney would be able to reverse 
the outcome, she decided to seek a new opinion. 
The record, however, lacks evidence corroborating the Petitioner's claimed notice to prior counsel. 
The Petitioner submitted materials suggesting that, before the motion's submission, current counsel 
attempted to communicate with prior counsel on an Internet site for posting attorney reviews. But the 
copies of the site's pages do not contain a posting from current counsel or indicate that prior counsel 
responded to such a posting. Also, our later review of the site does not show postings from current or 
prior counsel. Fmiher, even if the Petitioner notified prior counsel as she states, she has not 
demonstrated that she gave the lawyer an opportunity to respond. 
2 
The Petitioner submitted a copy of an email message that she sent to prior counsel's finn after the 
petition's appellate denial, criticizing the filing's preparation . But the message does not state the 
Petitioner's intent to claim ineffective assistance of counsel in these proceedings or provide prior 
counsel with an opportunity to respond to the allegation. The Petitioner claims that she previously 
tried to contact the law firm multiple times without success. The record, however, lacks corroborating 
evidence to support this claim. Thus, contrary to Lozada's requirements, the Petitioner has not 
demonstrated that she notified prior counsel of the ineffectiveness allegations and provided the lawyer 
with an opportunity to respond to them. 
C. Filing of a Complaint 
The Petitioner states that she did not file a complaint with disciplinary authorities against prior counsel. 
But, contrary to Lozada's requirement, she does not explain why she did not file a complaint. 
The Petitioner argues that "on its face, Lozada does not require filing a bar complaint." She states 
that, under Lozada, she need only file a complaint "if it is asserted that prior counsel's handling of the 
case involved a violation of ethical or legal responsibilities ." See Matter ofLozada, 19 I&N Dec. at 
639. She also states that "several [U.S.] circuit courts [of appeal] determined that a Bar complaint is 
not necessary to move forward with a Motion to Reopen based on ineffective assistance of Counsel." 
As previously indicated, however, the United States Court of Appeals for the Eleventh Circuit, which 
has jurisdiction over the Petitioner's residence, requires "substantial" compliance with Lozada. The 
Petitioner asserts that prior counsel misrepresented the Petitioner's proposed endeavor and neglected 
to submit "critical" evidence with the petition. Lawyers in the Petitioner's home state must not 
knowingly make false statements of fact or law to tribunals or offer evidence that the attorneys know 
to be false. See The Florida Bar, Rules of Professional Conduct, Rule 4-3.3(1), (4), 
www.floridabar.org/rules/rrtfb. Thus, the Petitioner does not explain how her ineffectiveness 
allegations do not involve purported violations ofprior counsel' s ethical responsibilities. We therefore 
find that, by not explaining the omission of a disciplinary complaint against prior counsel, the 
Petitioner did not substantially comply with the third Lozada requirement. 
The Petitioner has not substantially complied with two of the three Lozada requirements: 1) providing 
prior counsel with notice of the ineffectiveness allegations and an opportunity to respond to them; and 
2) explaining why a disciplinary complaint was not filed against prior counsel. Thus, under Eleventh 
Circuit case law, she has not substantially complied with Lozada. See Gbaya v. U.S. Att'y Gen., 
342 F.3d 1219, 1222 & n.2 (11th Cir. 2003) (ruling that a noncitizen did not substantially comply with 
Lozada where he submitted neither an affidavit regarding his agreement with prior counsel nor 
evidence that he provided prior counsel with notice and an opportunity to respond to his 
ineffectiveness allegations). 
D. Prejudice 
A noncitizen claiming ineffective assistance of counsel must also show prejudice. Dakane, 399 F.3d 
at 1274. "Prejudice exists when the performance of counsel is so inadequate that there is a reasonable 
probability that but for the attorney's error, the outcome of the proceedings would have been 
different." Id. 
3 
The Petitioner accuses prior counsel of mispresenting the Petitioner's proposed U.S. work. The 
Petitioner states that, before the petition's filing, she: told prior counsel of her experience as an 
organizational psychologist; provided the attorney with evidence of her experience; and explained 
that, in the United States, her work would focus on organizational psychology. But she states that 
prior counsel prepared the petition stating her proposed U.S. work as a "corporate human resources 
counselor" who, through her own company, would help small- and medium-sized businesses increase 
efficiency and profitability by promoting healthy work environments. 
The Petitioner states: "The case was missing critical evidence, [ and] the evidence that was 
submitted[,] such as my research publications[,] were not presented in a cohesive manner so that 
USCIS could understand the relevance of said documents." She also states that prior counsel 
submitted summaries of two different standard occupational classifications (SOCs) for her proposed 
job: one for human resource specialists; and the other for industrial organizational psychologists. 1 
The Petitioner claims that the differing SOCs "weakened the entire [petition]." She states: 
The SOC code provides a common language for USCIS and the Petitioner to clearly 
define and understand the nature of the work to be performed. The goal is to eliminate 
ambiguity and ensure the consistent application of the requirements are being met with 
regards to the proposed endeavor. . .. The proposed endeavor is directly related to the 
SOC code, and it is one of the most important elements for a successful National 
Interest Waiver [petition]. 
The Petitioner states that the two SOC codes "clearly created confusion," as the Director's request for 
evidence (RFE) questions the nature of her proposed work. The RFE states that "it appears the 
petitioner has several proposed endeavors rather than a specific proposed endeavor." The Petitioner 
states that USCIS "could not understand my proposed endeavor since [prior counsel] did not take the 
time to organize the file and include all the evidence which I submitted [to prior counsel]. But for the 
errors, I would have been approved." 
The record, however, does not sufficiently demonstrate that prior counsel's actions prejudiced the 
Petitioner. Contrary to the Petitioner's arguments, the Director did not deny the petition because of 
uncertainty about her proposed endeavor. Rather, the Director concluded that the Petitioner did not 
demonstrate that her proposed work has national importance. The Director found insufficient evidence 
that the venture's benefits would reach beyond her business, employees, and customers to have 
national implications. See Matter of Dhanasar, 26 I&N Dec. 884, 889-90 (AAO 2016) (explaining 
that a proposed endeavor may have national importance if it has: national implications within a 
particular field; significant potential to employ U.S. workers; or other substantial positive economic 
benefits). The Petitioner has not explained why, if her petition described her proposed work as an 
organizational psychologist, the Director would have found the endeavor nationally important and 
approved the filing. 
Also, the Petitioner overestimates the importance of a proposed endeavor's SOC. When reviewing a 
proposed venture, USCIS primarily considers statements from a petitioner, information in a business 
plan, and support letters. See generally 6 USCIS Policy Manual F.(D)(l), www.uscis.gov/policy-
1 A SOC is a statistical standard that federal agencies use to classify workers into job-related categories. See U.S. Bureau 
of Labor Statistics, "Standard Occupational Classification ," https://www.bls.gov/soc/. 
4 
manual. Thus, the record does not indicate that prior counsel's submission of two SOCs for the 
proposed occupation caused or contributed to the petition's denial. 
Further, ifprior counsel misrepresented the Petitioner's proposed U.S. endeavor, the Petitioner appears 
to have approved. She signed the Fonn 1-140, Petition for Alien Workers, attesting that she reviewed 
the filing and that all the information on the form and its supporting evidence was true and correct. 
Her signature on the petition creates a presumption that she knew the filing's content and approved of 
it. See Matters of Valdez, 27 I&N Dec. 496,499 (BIA 2018). In response to the Director's RFE, she 
also submitted a "personal statement" supporting the proposed endeavor listed in the petition. The 
Petitioner has not explained why she signed the petition and statement if she did not agree with the 
filing' s contents. 
III. CONCLUSION 
The Petitioner's motion does not substantially comply with the procedural requirements for a claim of 
ineffective assistance of counsel. She also has not demonstrated that prior counsel's actions prejudiced 
her. 
ORDER: The motion to reopen is dismissed. 
5