dismissed EB-2 NIW Case: Sales And Marketing

U.S. Citizenship 
and Immigration 
Services 
In Re: 17858325 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 19, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree , Exceptional Ability , National 
Interest Waiver) 
The Petitioner , a sales and marketing officer , seeks second preference immigrant classification as an 
advanced degree professional and as an individual of exceptional ability , as well as a national interest 
waiver of the job offer requirement attached to this employment -based, "EB-2" 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 Petitioner did not 
qualify for classification as an individual of exceptional ability, and that he had not established that a 
waiver of the required job offer, and thus of the labor certification , would be in the national interest. 
The Petitioner appealed the matter to us, and we dismissed the appeal , concluding that the Petitioner 
had not established that he was an advanced degree professional or an individual of exceptional ability , 
or that he was eligible for a national interest waiver of the job offer. 1 The matter is now before us on 
a motion to reopen and a motion to reconsider. On motion, the Petitioner submits a brief. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S .C. § 1361. Upon review , we will dismiss the motions . 
I. MOTIONS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). In addition, a motion to reconsider must (1) state the reasons for reconsideration and 
be supported by any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or U.S . Citizenship and Immigration Services (USCIS) policy , and (2) 
establish that the decision was incorrect based on the evidence in the record of proceedings at the time 
of the initial decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these requirements 
and demonstrates eligibility for the requested immigration benefit. 
1 See In Re: ID# 9046651 (AAO JAN. 27, 2021). 
II. ANALYSIS 
As an initial matter, we note that the review of any motion is narrowly limited to the basis for the prior 
adverse decision. Accordingly, we examine any new facts and arguments to the extent that they pertain 
to our prior dismissal of the Petitioner's appeal. 
On motion, the Petitioner submits a personal statement explaining why he believes he is qualified for 
the underlying EB-2 classification as well as a national interest waiver. However, the Petitioner does 
not provide new facts related to our prior decision or any new documentary evidence, nor has he 
demonstrated that we erred in our previous analysis based on the record before us on appeal. 
As noted in our prior decision, in order to qualify for a national interest waiver, the Petitioner must 
first show that he qualifies for classification under section 203(b )(2)(A) of the Act as either an advanced 
degree professional or an individual of exceptional ability. Furthermore, we explained in our decision 
that he had not met the first prong set forth in the Dhanasar analytical framework, thus rendering analysis 
of the remaining two prongs moot. 
A. Advanced Degree Professional 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following definition: 
Advanced degree means any United States academic or professional degree or a foreign 
equivalent degree above that of baccalaureate. A United States baccalaureate degree 
or a foreign equivalent degree followed by at least five years of progressive experience 
in the specialty shall be considered the equivalent of a master's degree. If a doctoral 
degree is customarily required by the specialty, the alien must have a United States 
doctorate or a foreign equivalent degree. 
Regarding his claim of eligibility as an advanced degree professional, which he raised for the first time 
on appeal, the Petitioner states on motion that "USCIS disregarded documentation from a U.S. 
university that the petitioner submitted during initial filing and in response to the Director's request 
for additional evidence (RFE)," and states that the petition would have been approved had USCIS 
considered this documentation. The Petitioner makes specific reference to a "transcript submitted in 
the Petitioner's name," 2 but he has not identified any new facts supported by documentary evidence 
to meet the requirements of a motion to reopen. As explained in our previous decision, because the 
record did not contain a diploma, transcript, or other evidence demonstrating that the Petitioner held a 
U.S. baccalaureate degree or foreign equivalent, the record was insufficient to establish his eligibility 
as a member of the professions holding an advanced degree. On motion, the Petitioner has not stated 
new facts supported by documentary evidence to overcome this determination. 
In addition, the Petitioner has not met the requirements for a motion to reconsider as he has not 
demonstrated that we erred in our previous analysis based on the record before us on appeal. The 
2 It appears that the Petitioner is referring to a previously submitted transcript from College! I indicating that 
he completed three courses at this institution and earned a total of 5 credit hours. This transcript does not support the 
Petitioner's contention that he earned a U.S. baccalaureate degree, or foreign equivalent, as required under 8 C.F.R. 
§ 204.5(k)(3)(i)(B). 
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Petitioner asserts on motion that sufficient evidence was previously submitted to establish his 
eligibility as an advanced degree professional. A motion to reconsider, however, is based on an incorrect 
application of law or policy. 8 C.F.R. § 103.5(a)(3). A request to reanalyze documentation without 
showing how we incorrectly applied law or policy does not meet the requirements of a motion to 
reconsider. 
Accordingly, the Petitioner has not shown proper cause for reopening the proceedings or reconsidering 
our decision on the issue of whether he qualifies as an advanced degree professional. The combined 
motion is dismissible on this ground. 
B. Exceptional Ability 
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definition: "Exceptional 
ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily 
encountered in the sciences, arts, or business." Additionally, in order to demonstrate exceptional 
ability, a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). 
Regarding his alternative claim that he is an individual of exceptional ability, we determined that the 
Petitioner's appeal brief did not address or specifically identify any erroneous conclusion of law or 
statement of fact relating to the Director's determinations for the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) and (F). We farther noted that despite submitting certificates of participation he 
received for completing training programs hosted by the Sales and Marketing Institute (SMI) and 
.__ ______ _. he did not provide evidence identifying him as a member of these organizations, 
nor did he provide evidence that their membership body is comprised of individuals who have earned 
a U.S. baccalaureate degree or its foreign equivalent, or that SMI and.__ ______ ~otherwise 
constitute "professional associations" to satisfy the requirements of 8 C.F.R. § 204.5(k)(3)(ii)(E). 
On motion, the Petitioner does not provide new facts related to our prior decision or any new 
documentary evidence. The Petitioner does not address the lack of specific arguments on appeal 
regarding the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A) and (F), nor does he submit new facts supported 
by documentary evidence to overcome our determination that he did not establish eligibility under the 
membership criteria at§ 204.5(k)(3)(ii)(E). Rather, the Petitioner's motion repeats previous arguments 
that he satisfies at least three of the evidentiary criteria at 8 C.F.R. § 204.5(k)(3)(ii) and generally asserts 
that the previously submitted documentation was sufficient. These assertions alone do not overcome 
our previous findings, and do not establish that he meets at least three of the six regulatory criteria at 
8 C.F.R. § 204.5(k)(3)(ii) and that he has achieved the level of expertise required for exceptional ability 
classification. Assertions made without supporting documentation are of limited probative value and 
do not carry the weight to satisfy the Petitioner's burden of proof See Matter of Sojfici, 22 I&N Dec. 
158, 165 (Comm'r 1998). 
The Petitioner has not met the requirements for a motion to reconsider as he has not demonstrated that 
we erred in our previous analysis based on the record before us on appeal. The Petitioner asserts on 
motion that sufficient evidence was previously submitted to establish his eligibility as an individual 
of exceptional ability. A motion to reconsider, however, is based on an incorrect application oflaw or 
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policy. 8 C.F.R. § 103.5(a)(3). Again , a request to reanalyze documentation without showing bow we 
incorrectly applied law or policy does not meet the requirements of a motion to reconsider. 
Accordingly , the Petitioner bas not shown proper cause for reopening the proceedings or reconsidering 
our decision on the issue of whether be qualifies as an individual of exceptional ability. The combined 
motion is dismissible on this ground . 
C. National Interest Waiver 
The remaining issue is whether the Petitioner bas established that a waiver of the requirement of a job 
offer, and thus a labor certification , is in the national interest. 
With respect to demonstrating eligibility for a national interest waiver pursuant to 
section 203(b )(2)(B)(i) of the Act, we set forth a framework for adjudicating national interest waiver 
petitions in the precedent decision Matter of Dhanasar , 26 I&N Dec. 884 (AAO 2016). 3 Dhanasar 
states that after a petitioner bas established eligibility for EB-2 classification , USCIS may , as a matter 
of discretion4, grant a national interest waiver if the petitioner demonstrates: (1) that the foreign 
national's proposed endeavor bas 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. 5 
With regard to our appellate determination that be did not establish eligibility under the first prong of the 
Dhanasar framework , the Petitioner contends as follows (verbatim): 
Petitioner's significant role in bis previous employments and bis successful marketing 
campaigns to many organizations and establishments in the Philippines increased sales 
in the organizations be was employed with can be possibly benefited the US economy 
upon bis entry to the United States since he bas a proven track record in sales and 
marketing and has a remarkable marketing strategy and unique technique s in sales and 
can bring superior benefits to national economy of the whole country. 
The Petitioner further lists the evidence be previously submitted and contends that "the records show 
the petitioner satisfied this requirement. " While bis assertions are noted , the Petitioner does contest 
our findings relating to any specific documentation or offer further arguments demonstrating that our 
analysis under Dhana sar's fust prong was in error. Our appellate deci sion concluded that while the 
Petitioner's statements reflected his intention to provid e valuable sales and marketing services for his 
U.S . employer and future clients, be had not offered sufficient information and evidence to 
demon strate that the pro specti ve impact of his propo sed endeavor rises to the level of nation al 
importan ce. We further determined that without sufficient information or evidence regarding any 
projected U.S. economic impact or job creation attributable to his future work, the record did not show 
3 In announcing this new framework, we vacated our prior precedent decision, Matter of New York State Department of 
Transportation, 22 I&N Dec. 215 (Act. Assoc. Comm'r 1998) (NYSDOI). 
4 See also Poursina v. USCIS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or 
deny a national interest waiver to be discretionary in nature). 
5 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prong s. 
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that benefits to the U.S. regional or national economy resulting from the Petitioner's sales and marketing 
projects would reach the level of "substantial positive economic effects" contemplated by Dhanasar. 
On motion, the Petitioner does not offer new facts or evidence relevant to our aforementioned findings. 
Instead, the Petitioner refers to his previously submitted evidence and asserts that it was sufficient to 
establish the national importance of his proposed endeavor. The Petitioner's motion does not include 
new facts supported by documentary evidence that overcome the grounds underlying our previous 
decision and that render him eligible under the first prong of the Dhanasar analytical framework. 
Further, the Petitioner does not cite to any relevant law, regulation, or precedent establishing that our 
previous findings were based on an incorrect application of the law, regulation, or USCIS policy, nor 
does the motion demonstrate that our decision was erroneous based on the evidence before us at the 
time of the decision. In Dhanasar, we held that a petitioner must identify "the specific endeavor that 
the foreign national proposes to undertake ." Id. at 889. Here, the Petitioner does not contest our 
findings relating to any specific documentation or offer further arguments demonstrating that our 
analysis under Dhanasar's fust prong was in error. The Petitioner instead broadly claims that the 
previously submitted documentation establishes eligibility. 
The Petitioner has not met the requirements for a motion to reconsider as he has not shown that we erred 
in our previous analysis based on the record before us on appeal. Further, the motion to reconsider does 
not establish that our previous findings were based on an incorrect application of law, regulation, or 
USCIS policy, and the Petitioner does not refer to any legal authority to demonstrate that we erred in 
denying his appeal. A moving party must specify the factual and legal issues that were decided in 
error or overlooked in the decision or must show how a change in law materially affects the prior 
decision. Matter of 0-S-G, 24 I&N Dec. 56, 60 (BIA 2006). Accordingly, the Petitioner has not 
demonstrated that his proposed work meets the "national importance" element of the first prong of the 
Dhanasar framework. 6 
Accordingly, the Petitioner has not shown proper cause for reopening the proceedings or reconsidering 
our decision on the issue of whether he qualifies for a national interest waiver. The combined motion 
is also dismissible on this ground . 
III. CONCLUSION 
The Petitioner's motion does not include new information or evidence that overcomes the grounds 
underlying our previous decision and does not show that our previous decision was based on an incorrect 
application of law or policy. 7 The Petitioner has not demonstrated that he qualifies as a member of the 
professions holding an advanced degree, or that he meets at least three of the six regulatory criteria at 
8 C.F.R. § 204.5(k)(3)(ii) to qualify as an individual of exceptional ability. The Petitioner therefore has 
6 Similarly, in Dhanasar, we determined that the petitioner's teaching activities did not rise to the level of having national 
importance because they would not impact his field more broadly. Id. at 893. 
7 The regulation at 8 C.F.R. § 103.S(a)(l)(iii) requires the motion to be "[a]ccompanied by a statement about whether or 
not the validity of the unfavorable decision has been or is the subject of any judicial proceedings and, if so, the court, 
nature, date, and status or result of the proceeding." In addition to the deficiencies noted above , the Petitioner did not 
include the required statement; therefore, his motion does not meet the applicable requirements. See 8 C.F .R. § 103. 5( a)( 4 ). 
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not established the Beneficiary's eligibility for the underlying EB-2 visa classification. In addition, as 
the record does not show that the Petitioner has met the first prong set forth in the Dhanasar analytical 
framework, we find that he has not established he is eligible for or otherwise merits a national interest 
waiver as a matter of discretion. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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