dismissed EB-2 NIW Case: Sciences, Arts, Or Business

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 27, 2024 In Re: 33441325 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification as either a 
member of the professions holding an advanced degree or as an individual of exceptional ability in the 
sciences, arts, or business. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ 1153(b)(2). The Petitioner also seeks a national interest waiver of the job offer requirement that is 
attached to this EB-2 immigrant classification. See section 203(b)(2)(B)(i) of the Act, 8 U.S.C. 
§ 1153(b)(2)(B)(i). 
The Director of the Texas Service Center denied the petition concluding that the Petitioner did not 
establish eligibility for the underlying EB-2 immigrant classification or that he is eligible for, and 
merits as a matter of discretion, a national interest waiver. We dismissed the subsequent appeal 
agreeing with Director that the Petitioner did not demonstrate his eligibility for the requested national 
interest waiver. The matter is now before us again on a combined motion to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
combined motion. 
As noted above, the Director denied the approval of this petition. The Director determined that the 
Petitioner does not qualify for the underlying EB-2 classification. We acknowledged the Director's 
determination and limited our review of the appeal to the Petitioner's eligibility for the national interest 
waiver. For the national interest waiver, the Director determined that the Petitioner had not met the 
three prongs of the analytical framework set forth in Matter of Dhanasar, 26 l&N Dec. 884, 889 
(AAO 2016). We dismissed the appeal affirming the Director's determination that the Petitioner did 
not meet Dhansar's first prong. We reserved our opinion on the second and third Dhanasar prongs 
and on the Petitioner's eligibility for the underlying EB-2 immigrant classification. See INS v. 
Bagamasbad, 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally 
required to make "purely advisory findings" and decisions unnecessary to the ultimate decision). 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. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). The scope of any motion is limited to "the prior decision" and "the latest decision in 
the proceeding." 8 C.F.R. § 103.S(a)(l)(i), (ii). We may grant motions that satisfy these requirements 
and demonstrate eligibility for the requested benefit. See Matter of Coelho, 20 l&N Dec. 464, 473 
(BIA 1992) (requiring that new evidence have the potential to change the outcome). 
The Petitioner submits a brief claiming we should reopen the petition because the Director did not 
give due regard to all the evidence provided with the petition and with his request for evidence 
response which demonstrates he qualifies for the underlying EB-2 classification and for the national 
interest waiver. The Petitioner further asserts that our appeal decision was "deficient" because it did 
"not evaluate all the arguments presented by the Petitioner in the appeal." However, he does not 
identify what arguments were not evaluated. Moreover, he does not introduce any new evidence, or a 
new fact supported by documentary evidence to establish proper cause to reopen our appeal decision. 
Accordingly, we will dismiss the motion to reopen. 
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.S(a)(l)(ii). We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
The Petitioner generally argues that the Director's decision denying the petition was "contrary to law 
or policy, and unsupported by the evidence of record." He further claims that the Director violated 
the Fifth Amendment of the U.S. Constitution by not "properly" analyzing evidence submitted with 
the petition and with his request for evidence response. As noted, however, our review is limited to 
reviewing the most recent decision. See 8 C.F.R. § 103.S(a)(l)((ii). Here, the Petitioner's arguments 
relate to the Director's decision instead of the most recent decision, our appeal decision. 
The Petitioner makes general assertions that our appeal decision did "not evaluate all the arguments 
presented" and the evidence was "not properly analyze[d]." But the Petitioner does not articulate what 
evidence was not properly analyzed, or specifically indicate how we incorrectly applied law or policy 
in our appeal decision. The Petitioner also does not articulate how the Director violated his Fifth 
Amendment rights. The Petitioner focuses on the Director's decision and does not explain how our 
appeal decision was based on an incorrect application of law or policy based on the evidence in the 
record. The Petitioner may disagree with our decision, but he has not established that we incorrectly 
applied any law or policy or that our decision was incorrect based on evidence in the record at the time 
of the decision, as required by 8 C.F.R. § 103.5(a)(3). Accordingly, we conclude that the motion does 
not meet all the requirements of a motion to reconsider and must therefore be dismissed pursuant to 8 
C.F.R. § 103.5(a)(4). 
The Petitioner has not established that our dismissal of the appeal was based on an incorrect application 
of law or policy warranting reconsideration of our decision; or that a new fact, supported by evidence, 
shows proper cause to reopen our appeal decision. Therefore, we affirm our previous determination 
that the Petitioner has not established eligibility under the first prong of the Dhanasar analytical 
framework and is thus not eligible for and does not merit a national interest waiver. We will continue 
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to reserve the issues of the Petitioner's eligibility for the underlying EB-2 immigrant classification and 
whether he meets the second and third Dhanasar prongs. See INS v. Bagamasbad, 429 U.S. at 25-26. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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