dismissed EB-2 NIW Case: Technology

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG. 26, 2024 In Re: 20917697 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an entrepreneur in the field of technology, seeks employment-based second preference 
(EB-2) immigrant classification as an individual of exceptional ability 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 Petitioner did not 
establish that he is an individual of exceptional ability and that he is eligible for or otherwise merits a 
national interest waiver as a matter of discretion. 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 
motions. 
I. LAW 
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). 
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. 
An officer to whom an appeal is taken shall summarily dismiss any appeal when the party concerned 
fails to identify specifically any erroneous conclusion of law or statement of fact for the appeal. 8 
C.F.R. § 103.3(a)(l)(v). 
II. ANALYSIS 
The Director denied the petition, concluding that the Petitioner did not establish that he is an individual 
of exceptional ability and that he is eligible for or otherwise merits a national interest waiver as a 
matter of discretion. The Petitioner's subsequent appeal did not identify specifically any erroneous 
conclusion of law or statement of fact in the unfavorable decision issued by the Director but indicated 
that he would submit a brief and/or additional evidence within 30 calendar days of filing the appeal. 
We summarily dismissed the appeal after having not received a brief or additional evidence. 
A. Motion to Reconsider 
The Petitioner requests we reconsider our summary dismissal because he stated in his Form I-290B 
the 
reason for the appeal and submitted an accompanying brief Our summary dismissal, the decision 
at issue, stated "[w ]e are summarily dismissing your appeal because it did not specifically identify any 
erroneous conclusion of law or statement of fact in the unfavorable decision" citing to 8 C.F.R. § 
103.3(a)(l)(v). A motion to reconsider must establish that our 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). A motion to reconsider must be 
supported by a pertinent precedent or adopted decision, statutory or regulatory provision, or statement 
of U.S. Citizenship and Immigration Services (USCIS) or Department of Homeland Security policy. 
Here, the Petitioner has not argued our summary dismissal was based on an incorrect application of 
law or policy. In his previous Form I-290B, signed on April 7, 2021, the Petitioner checked box l.b. 
indicating "I will submit my brief and/or additional evidence to the AAO within 30 calendar days of 
filing the appeal." While the Petitioner claims that he submitted an accompanying brief, the record 
does not show that he submitted a brief at the time of filing his appeal or within 30 days of filing the 
appeal. At the time of our summary dismissal on August 30, 2021, no brief or other documentation 
specifically identifying any erroneous conclusions of law or statement of fact had been received. 
In addition, the Petitioner claims that he stated in his Form I-290B the reason for the appeal. On page 
6 of his previous Form I-290B, the Petitioner stated: "Decision was contrary to law and weight of 
evidence." However, he did not cite laws, regulations, precedent decisions, or binding policies to 
support the claim that the Director's decision was based on an incorrect application oflaw or policy. 
In addition, he did not identify any erroneous statement of fact provided in the Director's decision. As 
such, we concluded the Petitioner's statement provided in his Form I-290B alone, without a brief or 
additional evidence, did not specifically identify any erroneous conclusion of law or statement of fact 
in the Director's decision. 
The Petitioner's instant motion to reconsider does not provide any reasons why he believes our prior 
appeal decision was based on an incorrect application of law or policy. Nor does he cite laws, 
regulations, precedent decisions, or binding policies. Likewise, the brief in support of the current 
motion lacks any cogent argument as to how we misapplied the law or policy in summarily dismissing 
the appeal. Instead, the Petitioner presents the same arguments he provided to the Director in response 
to a request for evidence and seeks reconsideration of our prior decision. Because the Petitioner has 
not established that our prior appeal decision was in error, we will, therefore, dismiss his motion to 
reconsider the matter. 
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B. Motion to Reopen 
In support of his motion to reopen, the Petitioner offers duplicate copies of the documents previously 
submitted to the Director. 1 A motion to reopen must state new facts and be supported by documentary 
evidence. 8 C.F.R. § 103.5(a)(2). The regulation at 8 C.F.R. § 103.5(a)(2) does not define what 
constitutes a "new" fact, nor does it mirror the Board of Immigration Appeals' definition of "new" at 
8 C.F .R. § 1003 .2( c )(1) ( stating that a motion to reopen will not be granted unless the evidence "was 
not available and could not have been discovered or presented at the former hearing"). Unlike the 
Board regulation, we do not require the evidence of a "new fact" to have been previously unavailable 
or undiscoverable. Instead, we interpret "new facts" to mean facts that are relevant to the issue(s) 
raised on motion and that have not been previously submitted in the proceeding, which includes the 
original petition. 
The Petitioner does not submit new facts or evidence relevant to our decision to summarily dismiss 
his appeal. Reasserting previously stated facts or resubmitting previously provided evidence does not 
constitute "new facts." For this reason, we find that the Petitioner has not stated new facts 
demonstrating his eligibility for the classification or supported the new facts with documentary 
evidence. We will, therefore, dismiss his motion to reopen the matter. See 8 C.F.R. § 103.5(a)(2). 
III. CONCLUSION 
On motion to reopen, the Petitioner has not offered new facts or evidence relevant to our decision to 
summarily dismiss the Petitioner's appeal. On motion to reconsider, the Petitioner has not established 
that our prior decision was based on an incorrect application of law or policy at the time we issued the 
decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
1 The Petitioner provides documentation on an average salary of chief executive officers and software developers in 
Nigeria, the Petitioner's bank statement with I I a tax clearance ce1tificate for I I an industry report 
about graphhie designers, an article about I I and a link to a Y ouTube video interview of the Petitioner about 
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