dismissed EB-2 NIW Case: Psychology

U.S. Citizenship 
and Immigration 
Services 
In Re: 19299651 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV. 30, 2021 
Form I-140 , Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks the 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 Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree but that she 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 subsequent appeal, concluding that the Petitioner has not provided 
consistent information regarding her proposed endeavor and thus has not established eligibility for a 
national interest waiver. The matter is before us again on a motion to reopen . 
The Petitioner has the burden to establish eligibility for the requested benefit by a preponderance of 
the evidence . See Section 291 of the Act, 8 U.S .C. § 1361; Matter ofChawathe , 25 I&N Dec . 369, 
375 (AAO 2010). Upon review, we will dismiss the motion. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence . 8 C.F.R. 
§ 103.5(a)(2). The new facts must also be relevant to the grounds of the unfavorable decision. A 
motion that does not meet the applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). We 
may grant a motion that satisfies these requirements and demonstrates eligibility for the requested 
immigration benefit. 
To establish eligibility for a national interest waiver , a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Because this classification requires that the 
individual's services be sought by a U.S . employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
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. 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. 
II. ANALYSIS 
As a preliminary matter, we note that by regulation, the scope of a motion is limited to "the prior 
decision." 8 C.F.R. § 103.5(a)(l )(i). The issue before us is whether the Petitioner has submitted new 
facts supported by documentary evidence to warrant reopening the petition. Upon review, we conclude 
that this motion does not meet the requirements of a motion to reopen under 8 C.F.R. § 103.5(a)(4). 
We determined in our previous decision that the Petitioner did not establish eligibility for the petition 
because she has not provided consistent and probative information regarding her proposed endeavor. 2 
Initially the Petitioner's "career plan in the United States [involved working] with a health care or 
research facility to conduct important research on various areas of mental health and provide expert 
advice and training to other professionals and students in the field" as a "clinical research 
coordinator." 3 In response to the Director's request for evidence (RFE) she provided an updated 
career plan that reflected a substantive change to her "overall proposed endeavor," stating she would 
"offer my expertise to work as a Research Coordinator, Consultant, and Business Coach, interacting 
with individuals who play decision-maker roles in the business field to advise them on improving 
performance and efficiency and maximize results for their companies." She farther indicated that she 
is a co-owner of two companies focusing on data science and artificial intelligence and that her 
"proposed endeavor is to expand the performance of [her company], and continue creating new models 
of Artificial Intelligence, so that I can solve important questions from companies and other American 
organizations." The Petitioner also stated that "in the next 3 years," she "intend[ s] to pursue a 
doctorate degree in Artificial Intelligence and Personality Theory" and that her "other personal goal is 
to continue to seek and dedicate time to voluntary work." 
The Petitioner did not provide an explanation for the changes in her specific proposed endeavor in the 
RFE response ( or on appeal). Ultimately, we affirmed the Director's determination in his denial that 
the Petitioner's RFE response presented a new set of facts regarding the nature of her proposed 
endeavor, which is material to eligibility for a national interest waiver. 4 As she did not consistently 
1 See also Poursina v. USCIS, 936 F.3d 868, 2019 WL 4051593 (9th Cir. 2019) (finding USCTS' decision to grant or deny 
a national interest waiver to be discretionary in nature). 
2 Our previous decision in this matter was TD# 10422400 (AAO APR. 22, 2021 ). 
3 The Petitioner's initially proposed Clinical Research Coordinator duties were copied verbatim from the Occupational 
Information Network (O*NET) for this occupation at https://www.onetonline.org/link/summary/l l-9121.0l. 
4 The Petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l2); Matter of Katigbak, 14 I&N Dec. 
45, 49 (Comm'r 1971). 
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describe her proposed endeavor, we determined that she did not demonstrate any of the prongs under 
the Dhanasar analytical framework or establish eligibility for a national interest waiver. 5 
On motion, the Petitioner requests that the petition be reopened to give her an opportunity to 
supplement the record with evidence to "prove that I can support and enhance the wealth and growth 
of the United States through my skills, knowledge and talent that I have had in the field of Psychology 
for more than 15 years." She asserts, among other things, that the petition contained various 
inaccuracies due to the "ineffective assistance of counsel," stating she was "unaware of what [her 
initial career plan] was about" as an individual employed by her counsel's law firm wrote it. 6 She 
explains that "the [ clinical research coordinator occupation] was determined exclusively by the lawyer 
or any other employee of the [law firm]," and "did not match my professional background and my 
professional intentions in the United States." She further alleges that she provided her counsel with 
all of the evidence requested by the Director in the RFE but is unaware of what documents were "really 
sent to USCIS," as she "did not have access to the petition at any time, and the [RFE response was] 
elaborated by [her lawyer]." 7 
Within her motion, she reiterates her intention (which she first presented in her RFE response) to work 
in the United States "as a consultant psychologist, guiding important leaders and teaching them to 
make effective and right decisions, according to their personalities." However, the record does not 
substantiate her assertion that she was unaware of the content of her initial career plan or other 
documents filed in support of her petition. For instance, in 2018 she signed each page of the initial 
career plan submitted with the petition, in which she avers that she will work as a "clinical research 
coordinator." She also signed her 2019 career plan provided in response to the RFE in which she 
made only a passing reference to her initially stated intention to work as a clinical research coordinator 
( and instead predominantly focused on other proposed work activities as a consultant, business coach, 
teacher, entrepreneur, and student). We also note that the petition contains the Petitioner's signature 
in Part 8 in which she certified "under penalty of perjury under the laws of the United States of 
America, that this petition and the evidence submitted with it are all true and correct." 8 While the 
Petitioner alleges that she was unaware of the content of the documents submitted in support of the 
petition and "did not have access to the petition at any time," the evidence of record suggests 
otherwise. 9 
5 See Dhanasar, 26 T&N Dec. at 889-90. 
6 The Petitioner explains in her motion "a complaint [regarding the ineffective assistance of counsel in this petition] has 
not been filed with appropriate disciplinary authorities regarding such representation. In addition to waiting for a response 
from the [law firm] in regard ofmy allegations, I am looking for a lawyer to help me file a complaint with the disciplinary 
authority." If the Petitioner believes that an attorney or accredited representative has engaged in criminal, unethical, or 
unprofessional conduct while practicing before OHS she may file a complaint with the USCIS Disciplinary Counsel. See 
8 C.F.R. § 292.2(d)(l). For further information, see AAO Practice Manual, Chapter 2, section 2.10 Rules of Professional 
Conduct, which may be accessed at https://www.uscis.gov/administrative-appeals/aao-practice-manual/chapter-2-
representation-of-parties-before-the-administrative-appeals-office. 
7 If the Petitioner she wishes to obtain a copy of her USCTS records, she may file a Freedom of Information Act Request 
(FOTA request). See https://www.uscis.gov/records/request-records-through-the- freedom-of-information-act-or-privacy­
act. 
8 A Petitioner's signature on an immigration benefit request establishes a strong presumption that he or she knows of and 
has assented to the contents of the request. Matter of Valdez, 27 I&N Dec. 496 (BIA 2018). 
9 The Petitioner must resolve this inconsistency in the record with independent, objective evidence pointing to where the 
truth lies. Matter of Ho, 19 l&N Dec. 582, 591-92 (BIA 1988). 
3 
Importantly, it would serve no useful purpose for the Petitioner to provide new evidence to establish 
eligibility that is materially inconsistent with the evidence initially provided in support of the instant 
petition. As discussed in our decision dismissing the Petitioner's appeal, a petitioner may not make 
material changes to a petition to make a deficient petition conform to USCIS requirements. See Matter 
of Izwnmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998). If significant, material changes are made 
to the initial request for approval, a petitioner must file a new petition rather than seek approval of a 
petition that is not supported by the facts in the record. For the reasons discussed, the Petitioner has 
not presented on motion new facts to establish eligibility for the benefit sought. 
III. CONCLUSION 
As the Petitioner has not met the requirements for a motion to reopen, we affirm our prior conclusion 
that the Petitioner has not established eligibility for, or otherwise merits, a national interest waiver. 
ORDER: The motion to reopen is dismissed. 
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