dismissed EB-2 NIW Case: Restaurant Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 13, 2025 In Re: 35981058 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a restaurant manager, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or an individual of 
exceptional ability in the sciences, arts or business, 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish the Petitioner 's eligibility for the requested EB-2 classification or a national interest waiver. 
We dismissed a subsequent appeal as well as a combined motion to reopen and reconsider. The matter 
is now before us again 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 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
combined motions. 
A motion to reopen must state new facts and be supported by documentary evidence. 
8 C.F.R. § 103.5(a)(2). 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. See Matter of Coelho, 
20 I&N Dec. 464, 473 (BIA 1992) (requiring that new evidence have the potential to change the 
outcome). 
In our first appellate decision, we agreed with the Director's conclusion that the Petitioner did not 
establish eligibility for the underlying EB-2 immigrant classification. We concluded that, because the 
Petitioner did not contest the Director's determination regarding his eligibility as an advanced degree 
professional, we considered that issue waived. 1 And we concluded that the record did not establish 
the Petitioner is an individual of exceptional ability because he did not meet any of the six evidentiary 
1 An issue not raised on appeal is waived. See, e.g., Matter ofO-R-E-, 28 I&N Dec. 330, 336 n.5 (BIA 2021) ( citing Matter 
ofR-A-M-, 25 l&N Dec. 657, 658 n.2 (BIA 2012)). 
criteria at 8 C.F.R. § 204.5(k)(3)(ii). Moreover, because the Petitioner did not establish eligibility for 
the underlying EB-2 classification, we reserved our consideration of his appellate arguments regarding 
the national interest waiver. 2 
In our most recent decision dismissing the Petitioner's combined motion to reopen and reconsider, 
incorporated here by reference, we determined that the Petitioner did not submit new evidence or new 
facts that establish eligibility for the requested benefit, nor did the Petitioner identify any error of law 
or policy in our prior decision. Instead, we concluded that the Petitioner's motion merely reargued 
facts and issues we considered in our previous decision. Accordingly, we dismissed the Petitioner's 
combined motions to reopen and reconsider because it did not meet the regulatory requirements. 
8 C.F.R. § 103.5(a)(4) 
On motion, the Petitioner submits a brief, a copy of our most recent decision dismissing his combined 
motions to reopen and reconsider, as well as evidence previously submitted before the Director. In 
his brief, the Petitioner does not address our determination regarding his eligibility for EB-2 immigrant 
classification, nor does he address the most recent decision dismissing his combined motions to reopen 
and reconsider. 3 Instead, the Petitioner reiterates the same claims previously made on appeal regarding 
his eligibility for the requested national interest waiver. Because the Petitioner has not established 
new facts relevant to our most recent decision that would warrant reopening of the proceedings, nor 
has he shown that we erred as a matter of law or policy we have no basis for reopening or 
reconsideration of our decision, and the combined motions will be dismissed. 8 C.F.R. § 103.5(a)(4). 
As stated, the scope of a motion is limited to "the prior decision" and "the latest decision in the 
proceeding." 8 C.F.R. § 103.5(a)(l)(i), (ii). The Petitioner's contentions in their current motion 
merely reargue facts and issues we have already considered in our previous decisions. See e.g., Matter 
of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) ("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 Board decision"). We will not re-adjudicate the petition anew and, therefore, 
the underlying petition remains denied. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
2 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 T&N Dec. 516, 526 n. 7 (BIA 2015) 
(declining to reach alternative issues on appeal where an applicant is otherwise ineligible). 
3 In the brief accompanying the combined motions to reopen and reconsider the Petitioner does not acknowledge our prior 
decisions, and instead discusses the denial of his Form 1-485, Application to Register Permanent Residence or Adjust 
Status, which is not the subject of this combined motion. 
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