dismissed EB-2 NIW Case: Public Health

(b)(6)
DATE: JAN 0 2 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) · 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship · 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability ~ursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. § 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please fmd the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised 
that any further inquiry that you might have concerning your case must be made to 
that ~ffice. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion; with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal from that 
decision. The matter is now before 
the AAO on a motion to reopen and reconsider. The AAO will 
dismiss the motion. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability and a member of the professions 
holding anadvanced degree. At the time he filed the Form 1-360 oetition on his own behalf on May 
10, 2010, the petitioner was a fund development officer for a non-profit 
organization based in He has since begun working as a manager for program 
development and family wellness for 
The petitioner asserts that an exemption from the requirement of a job offer, and thus of 
a labor certification, is in' the national interest of the United States. The director denied the petition on 
November 9, 2010, having found that the petitioner qualifies for classification as a member of the 
professions holding an advanced degree, but that the petitioner ha.S not established that an exemption 
from the requirement of a job offer would be in the national interest of the United States. The AAO 
affirmed the director's findings and dismissed the appeal on March 13, 2012. 
On motion, the petitioner submits a brief: several witness letters, and other exhibits. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be suppbrted 
by affidavits or other documentary evidence. 8 C.P.R. § 1 03.5(a)(2). A motion to reconsider must 
state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish 
that the decision wa.S based on an incorrect application of law or USCIS policy. A motion to 
reconsider a decision on an application or petition must, when filed, also establish that the decision was 
incorrect based on the evidence of record at the time of the initial dcxision. 8 C.P.R. § l03:5(a)(3). A 
motion that does not meet applicable requirements 
shall be dismissed. 8 C.P.R.§ 103.5(a)(4). 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -
(A) In General:- Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the ·sciences, arts, professions, or business be sought by an employer 
in the United States. 
(b)(6)Page3 
The issue in this proceeding is whether the petitioner has established that a waiver of the job offer 
requirement, and thus a labor certification, is in the national interest. Matter of New York State Dept. of 
Transportation (NYSD01), 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998), has set forth several factors 
which must be considered when evaluating a request for a national interest waiver. First, the petitioner 
must show that the alien seeks employment in an area of substantial intrinsic merit. Next, the petitioner 
must show that the proposed benefit will be national in scope. Finally, the petitioner must establish 
that the alien will serve the national interest to a substantially greater degree than would an available 
U.S. worker having the same minimum qualifications. 
When the petitioner first filed the petition, counsel stated that the petitioner qualifies for the national 
interest waiver due.to "[h]is expertise in AIDS Intervention especially in labor Intensive Industries 
such as mining, agriculture and energy."· A May 20, 2008 letter from , director of 
offered the following description of' mission: 
The has undertaken as its Mission "To provide economic and 
trade opportunities for the most persecuted, oppressed populations - particularly 
women and children - enabling them to provide for themselves, their families and to 
break the cycle of poverty and oppression. " ... 
The philosophy of is not to give. away material goods to the needy but to 
provide skills training and development, offer small loans and Small Business 
development, and, assist clients to market locally-sourced products to provide 
producers a favorable wage for their efforts. 
(Emphasis in original.) The AAO noted: ''If performed work directly related to HIV/AIDS 
patient care or prevention, its director made no mention of such work in her letter." On Form ETA-
7508, Statement of Qualifications of Alien, the petitioner stated that he was a "Fund Development 
Officer" for He stated that his responsibilities were to "[d]irect legal, administrative, 
fmancial, marketing, · fundraising and field visits to projects sponsored by 
Facilitating economic and training opportunities." 
The petitioner left in September 201 0 and began working for shortly afterward. 
web site included the following description of the petitioner's role there: 
His responsibilities include promoting and develqping the corporate identity of the 
organization whilst at the same time applying his knowledge, skills and experience to 
help those impacted by crime and incarceration in This includes 
programs in prison, helping incarcerated fathers to prepare for successful reentry into 
their families and society a8 well as wo*ing outside of prison to help dependents deal 
with family reconstruction, incarceration and reentry. 
Souree: (printout added to record December 28, 
2011). In a January 13, 2012 notice of intent to dismiss the appeal, the AAO stated that the petitioner's 
"latest position at however, does not appear to relate to 
HIV I AIDS prevention apd care at all." 
(b)(6)Page4 
In response, the petitioner submits a letter dated January 10, 2011, signed by 
board of directors. The letter indicated that had not yet started 
its HIV/AIDS work, but intended to do so now that the petitioner was on staff. A new job 
description indicated that the petitioner "is generally responsible for the project management of our 
existing programs and support unit but ... will specifically be responsible for developing new 
community-based initiatives that will address the prevention of HIV I AIDS and Sexually 
Transmitted Infections in accordance with the_ newly released US National AIDS Plan." 
The petitioner submitted ·a described ''vision," 
"mission," "objectives," "ministries," "opportunities" and other activities: The pamphlet included 
mention of"day camps," a "Mom's Club" and a "Skateboard Ministry." 
The AAO, in its dismissal notice, observed that materials for public consumption, such as 
its web site and the pamphlet, did not discuss HIV I AIDS. Materials created 
specifically for the AAO's benefit, however (such as emoloyer letters) heavily emphasized the 
petitioner's work with HIV/AIDS. Quoting the AAO stated: ' exists not as 
a public health organization for the general benefit of the community at large, but. as a religious 
missionary organization 'established to address the national spiritual crisis that is now reflected in 
and through America's Criminal Justice systems."' The AAO concluded: 
When judging the credibility of the petitioner's submissions, it is highly significant 
that HIV I AIDS prevention and education only surface as major elements of the 
petitioner's current job in the context of immigration filings. The AAO also cannot 
ignore that nonimmigrant petition on the alien's behalf strongly emphasized 
his past work with HIV/AIDS. When called upon to explain how his largely 
administrative/managerial work at related to HIV I AIDS, the petitioner 
submitted no evidence to that effect. Instead, counsel essentially acknowledged that 
there was no strong connection, stating that the waiver application rested on the 
petitioner's HIV I AIDS work, not on his later fund development work for Thus, 
the record shows that the petitioner has, in the past, relied upon his past HIV I AIDS­
related work to obtain immigration benefits that allowed him to perform unrelated 
work. In this light, the differences between public materials and its letters 
to USCIS are very significant. 
Doubt cast on any aspect ofthe petitioner's proof may lead to a reevaluation ofthe 
reliability and sufficiency of the remaining evidence offered in support of the visa 
petition. Matter of Ho, 19 I&N Dec. 582, 591 (BIA 1988). It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective 
evidence, and. attempts . to explain or reconcile such incOnsistencies, absent 
competent objective evidence pointing to where the truth, in fact, lies, will not 
suffice. !d. at ~82, 591-92. 
The petitioner devotes some of his ten-page motion brief to peripheral issues, such as the question 
of whether his title at was "Fund Development Officer" or ''Program Development Officer," 
and whether the petitioner, who lacks medical training, is a "qualified. health professional." These 
(b)(6)
PageS 
issues are tangential to the central point, which is that and then emphasized HIV I AIDS 
only in materials prepared specifically to support immigration petitions. The public faces of these 
organizations emphasized important, but very different, purposes and goals. The AAO dismissed 
the appeal because this discrepancy raised significant credibility questions. 
On motion, the petitioner submits a copy of his ' dated 
April 12, 2012, a month after the AAO dismissed the anneal. The plan indicates that the petitioner 
"is employed by a 501(c)(3) organization in that focuses on the Reentry of prison 
inmates into society," and intends to "[e]stablish a company specializing only in [the petitioner's] 
field of expertise" while continuing to work for 
The newly-crafted plan does not establish that the petitioner was eligible for the benefit sought at 
the time he filed the petition in May 2010. The plan does not indicate that the AAO made an 
incorrect decision based on the record at the time of the dismissal of the appeal, nor does it offer 
new evidence relevant to the petitioner's eligibility at the time of filing the petition. 
The petitioner explains how his work for would advance his goal ofHIV/AIDS prevention: 
The county prison inmates are incarcerated for relatively short periods oftime. [The 
petitioner] can have an influence on them as a 'captive' audience via the existing 
nursing and medical facility or the chaplain's office. These inmates move back to 
their respective communities who are usually serviced by religious organization[s], 
e.g. The service provide[ d] in the communities related to the inmates might 
grow into interest from other groups and organizations, e[.]g[.] schools, churches, 
non-faith-based organization[ s] and might potentially have an impact on the nation 
as a whole. 
The scenario described above is admittedly speculative; the petitioner uses the word "might" twice 
in the same sentence when predicting the results of his work. The petitioner submits no evidence 
that this strategy had proven effective as of the date of filing the petition, or even during the nearly 
two years that passed between the filing of the petition and the filing of the motion. Conjecture 
about what "might" work is not a basis for the national interest waiver. 
The petitioner submits printouts from two web sites operated by One page, marked as the 
petitioner's "Job Description," emphasizes his work with HIV/AIDS. The date on this page is 
March 18, 2012, five. days after the AAO issued its dismissal notice. Another page detailing the 
petitioner's intended work with HIV/AIDS has an even later date, April9, 2012. The timing ofthe 
posting of these pages (during the interval between the dismissal and the filing of the motion) does 
not appear to be coincidental. The petitioner submits no evidence that implemented an 
HIV/AIDS program between the time it hired the petitioner and the filing of the motion more than a 
year later. 
The petitioner's motion includes four new witness letters (and a copy of a previously submitted 
letter). The resubmitted letter is from 
who credited the petitioner with a "'best-practice' model of HIV/AIDS intervention 
He was instrumental in getting the community in this area to take joint responsibility for 
(b)(6)
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their wellness with government and non-governmental groups and international agencies." The 
petitioner asserts that letter shows that "peer-based preventio~ interventions, a 
·method used by the Petitioner, actually promote wellness." The petitioner does not show what 
"peer-based prevention interventions" he implemented since his 2008 arrival in the United States. 
As late as 2012, he sho'Yed only that he intends to implement such strategies at some unspecified 
future point in time. · 
In one of the new letters, identifies himself as a former vice president of the 
board of directors from 2008 to 2010. stated that the petitioner's responsibilities at 
included ''training U.S. teams about HIV/AIDS" as well as a project that "offered free HIV testing, 
counseling and treatment as well as food, clothing, shelter and employment opportunities" "for 
prostitutes in , 
The record contains a previous letter from , dated September 9, 2010. In the earlier letter, 
did not mention at all (except to list his position among 20 "Other Activities" in an 
accompanying biography). did not, in 2010, indicate that the petitioner's work at ' 
included any significant HIV/AIDS-related activity. Rather. focused on his collaboration 
with the petitioner at " 
In an Aoril10. 2012 letter, J chief executive officer of the 
described the petitioner's ·work in Africa. With respect to the peuuoner's 
work in the United States, asserts that the petitioner's "proposed interventions will 
make a noticeable impact" in reducing new HIV infections. did not identify or describe 
these interventions, or state to what extent the petitioner has already implemented them. 
Another new letter, dated April 1, 2012,. is from 
chai.rinan of the executive committee of the 
The letter is addressed to 
stated: 
We have been meeting since Apri12010 .... 
member of the board of directors and 
I met [the petitioner] ... at the meetings. He is very faithful in attendance and 
regularly shares relevant information with both volunteers and inmates regarding 
family wellness, specifically focusing on the importance of fathering/parenting. This 
is very important to reduce/avoid several lifestyle diseases such as HIV I AIDS and 
other addictions. · 
In the passage quoted above, 
focus of the petitioner's work. 
mentioned HIV I AIDS almost in passing rather than as a 
executive director of wrote a letter to 
'on April1, 2012, having met the petitioner at a conference the week before. 
asked for permission '.'to continue consulting with" the petitioner, having learned that the 
petitioner "has experience in the design of national policy, especially HIV/AIDS prevention and 
care." stated: "HIV/AIDS/STl and other lifestyle complications are realities in 
(b)(6)
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Page7 
prisons," but did not mention any specific accomplishments by the petitioner in that area. Rather, 
he stated that he learned, "in conversation," of the petitioner's ''work in Africa." 
The letters submitted on motion do not show that, as of the time of filing the petition, the petitioner 
was engaged in ongoing, influential work relating to HIV/AIDS prevention, treatment or policy. 
Rather, they indicate that, several years after the filing date, plans for such work were still 
embryonic. 
Printouts of electronic mail messages submitted on motion reflect the petitioner's unsuccessful 
efforts to solicit letters from two officials of the United States government. In August and 
September 2010, the petitioner sought a letter from , then director of the 
The petitioner, in his message, mentioned his past work but did not 
state that he was, at the time ofwriting, working in the area ofHIV/AIDS. Rather, he stated: "I am 
in the employ of a non-profit focusing on empowering abused women and children in developing 
countries to become economically independent." This description is consistent with other 
descriptions from the period. In April 2012, again without success, the petitioner attempted to 
obtain a letter from 
The petitioner labeled the orintouts as evidence of "communication with and 
"communication with This description is somewhat misleading, as there is no 
inciic~tion that _ saw either message. Rather, the responses are from 
staffers, 
who informed the petitioner that the officials did not have time available on their 
upcoming schedules and, due to ethics rules, could not provide endorsement letters. 
USCIS disfavors motions for the reopening of immigration proceedings for the same reasons as 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS 
v. Doherty, 502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to 
reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current 
motion, the petitioner has not met that burden. The petitioner has not provided new, previously 
unavailable evidence to establish eligibility as of the petition's filing date. The AAO will dismiss 
the motion to-reopen.-
·Furthermore, the revisions to the record (such as changes to the CCGM web site immediately after 
the AAO dismissed the appeal), coupled with the lack of first-hand, contemporaneous 
documentation, serve to compound rather than resolve the credibility issues that the AAO cited in 
its earlier decision. 
The petitioner cannot use a motion to reconsider to raise a legal argument that the petitioner could have 
raised earlier in the proceeding. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 
1991 ). Rather, the "additional legal arguments" in a motion to reconsider should flow from new law or 
a de novo legal determination reached in the disputed decision that the petitioner could not have 
addressed previously. Further, a motion to reconsider is not a process by which a party may submit, in 
essence, the same brief presented on appeal and seek reconsideration by generally alleging error in the 
prior decision. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). InStead, the moving party must 
specifY the factual and legal issues raised on appeal that were decided in error or overlooked in the 
initial decision or must show how a change in law materially affects the prior decision. /d. at 60. The 
(b)(6)
Page 8 
petitioner has not shown that the AAO's decision was incorrect at the time of that decision. 
Therefore, the petitioner's motion does not meet the requirements of a motion to reconsider. 
ORDER: The motion is dismissed.