dismissed EB-2 NIW Case: Restaurant Industry

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: OCT. 01, 2024 In Re: 34263519 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the restaurant industry, seeks employment-based second preference 
(EB-2) immigrant classification 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 Petitioner had not 
established that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The matter is now before us on appeal pursuant to 8 C.F .R. § 103.3. 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 
motion. 
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). 
We incorporate our prior decision by reference and will repeat only certain facts and evidence as 
necessary to address the Petitioner's claims on motion. On motion, the Petitioner submits industry 
articles regarding Brazilians in the United States, restaurants in Florida, and Brazilian steakhouses. 
The Petitioner asserts that these new facts establish his eligibility for the national interest waiver, as 
they show that his proposed endeavor to open a Brazilian restaurant in Florida is nationally important. 
Similar to our assessment of the evidence on appeal, we find that these submissions discuss the 
restaurant industry as a whole and do not specifically address the Petitioner's proposed endeavor. 
Moreover, the Petitioner must meet eligibility requirements at the time of filing the petition. See 8 
C.F.R. § 103.2(b)(l); see also 8 C.F.R. § 103.2(b)(ll) (requiring all requested evidence be submitted 
together at one time). The Petitioner also had the opportunity to submit additional evidence requested 
before the Director. New facts after the filing date cannot establish eligibility as of the priority 
date. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Therefore, we will not 
disturb our previous finding that the Petitioner has not established that his proposed endeavor has 
broader implications in his industry, and therefore has not established that his endeavor is of national 
importance under the first Dhanasar prong. See Matter ofDhanasar, 26 I&N Dec. 884 at 893 (AAO 
2016) ( a petitioner's "undertaking may have national importance ... because it has national or even 
global implications within a particular field, such as those resulting from certain improved 
manufacturing processes or medical advances"). 
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, the Petitioner contests the correctness of our prior decision in a counsel-authored brief and 
personal statement by the Petitioner. In support of the motion, the Petitioner asserts that he has already 
submitted substantial, relevant, probative, and credible evidence establishing his eligibility for the 
national interest waiver. He refers to numerous statutes, regulations, case law, and USCTS policy. 
However, the Petitioner's motion does not explain how our appeal dismissal was incorrect according 
to these authorities. For example, while the Petitioner argues that our dismissal of his appeal did not 
properly evaluate the evidence under the Dhanasar requirements, he does not specify what evidence 
was improperly evaluated or how an alternate analysis would have established his eligibility. 1 
Although the Petitioner additionally argues that our appeal decision was "not objectively evaluated 
but was motivated by obvious bias against" him, he does not further elaborate this claim. See, e.g., 
Matter ofS-M-, 22 I&N Dec. 49, 51 (BIA 1998) (noting that "statements in a brief, motion, or Notice 
of Appeal are not evidence and thus are not entitled to any evidentiary weight"). 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. Our decision also identified several 
deficiencies in the record that the Petitioner neither mentions nor seeks to address on motion. As the 
Petitioner's motion does not support his arguments that our prior decision was based on an incorrect 
application of law, it does not meet the requirements for a motion to reconsider. 
In sum, although the Petitioner has submitted additional evidence in support of the motion to reopen, 
the Petitioner has not established eligibility. On motion to reconsider, the Petitioner has not 
established that our previous decision was based on an incorrect application of law or policy at the 
time we issued our decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
1 Similarly, the Petitioner claims on motion that we did not take into consideration the evidence that he is an individual of 
exceptional ability. As the Petitioner has established before the Director that he qualifies as a member of the professions 
holding an advanced degree. he is not required to also show that he is an individual of exceptional ability. See section 
203(2)(B)(i) of the Act (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 ( emphasis 
ours). 
2 
FURTHER ORDER: The motion to reconsider is dismissed. 
3