dismissed EB-2 NIW Case: Unclear

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: WLY 25, 2023 In Re: 27272951 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks second preference immigrant classification as a member of the professions 
holding an advanced degree, as well as a national interest waiver of the job offer requirement attached 
to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. 
§ l l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualified 
for classification as a member of the professions holding an advanced degree but 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 Director dismissed a subsequent motion to reconsider and 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. 
I. LAW 
A motion to reopen is based on new facts that are supported by documentary evidence, and a motion 
to reconsider is based on an incorrect application of law or policy. The requirements of a motion to 
reopen are located at 8 C.F.R. § 103.5(a)(2), and the requirements of a motion to reconsider are located 
at 8 C.F.R. § 103.5(a)(3). 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We interpret "new facts" to mean those that are relevant to the issues raised on motion 
and that have not been previously submitted in the proceeding, which includes within the original 
petition. Reasserting previously stated facts or resubmitting previously provided evidence does not 
constitute "new facts." A motion to reopen that does not satisfy the applicable requirements must be 
dismissed. 8 C.F.R. § 103 .5(a)(4). 
A motion to reconsider on the other hand must: (1) state the reasons for reconsideration, (2) be 
supported by any pertinent precedent decision to establish that the decision was based on an incorrect 
application oflaw or policy, and (3) establish that the decision was incorrect based on the evidence in 
the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider that does not 
satisfy these requirements must be dismissed. 8 C.F.R. § 103.5(a)(4). 
The review of a motion is limited to the basis for the prior adverse decision. The regulation at 8 C.F.R. 
§ 103.5(a)(l )(i) generally requires that the decision a motion seeks to reopen or reconsider must have 
taken place within the prior 30 days. So we follow the regulations as written and limit our review to 
the prior decision made within 30 days of filing the motion. We evaluate any new facts, arguments or 
allegations of error in the application of law or service policy in connection with our decision upon 
which the current motion was filed. We may only grant a motion that satisfies these requirements and 
demonstrates eligibility for the benefit sought. 
II. ANALYSIS 
A. Motion to Reopen 
The Petitioner has not provided us with new facts warranting reopening the proceedings here. We 
interpret "new facts" to mean those that are relevant to the issues raised on motion and that have not 
been previously submitted in the proceeding. Reasserting previously stated facts or resubmitting 
previously provided evidence does not constitute the submission of"new facts." The Petitioner's brief 
encourages us to look beyond our prior decision and expand our examination to encompass the 
Director's original denial of the petition, the denial of the motion to reopen filed with the Director, 
and our subsequent appeal dismissals to find the new facts it says support a motion to reopen. We do 
not have the authority to do that. The regulation generally requires that the decision a motion seeks to 
reopen or reconsider must have taken place within the prior 30 days and we follow the regulations as 
written. See 8 C.F.R. § 103.5(a)(l)(i). 
All parties to a matter deserve an opportunity to be heard. But once proceedings provide that fair 
opportunity, a strong interest exists to bring the matter to a close. INS v. Abudu, 485 U.S. 94, 107 
(1988). So a party seeking to reopen the proceedings bears a "heavy burden" of proof Id. at 110. 
The Petitioner does not provide any new facts that relate to our decision to dismiss its appeal. The 
Petitioner submits with their motion a brief repeating the facts it said it submitted in its previous appeal 
and motion. Facts that are repeated and were provided previously are not "new facts" by definition 
and we decline to consider them. 
B. Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration and that the decision was based on an 
incorrect application of law or U.S. Citizenship and Immigration Services (USCIS) policy. 8 C.F.R. 
§ 103.5(a)(3). The Board oflmmigration Appeals generally requires that a motion to reconsider assert 
an error was made at the time of the previous decision. The very nature of a motion to reconsider is the 
claim that the original decision was defective in some regard. See Matter ofO-S-G-, 24 I&N Dec. 56, 57 
(BIA 2006). 
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The Petitioner does not state the reasons for reconsideration, support those reasons with any pertinent 
precedent decision to establish that the decision was based on an incorrect application oflaw or policy, 
and establish that the decision was incorrect based on the evidence in the record at the time of the 
decision. The Petitioner's brief: as stated previously, simply repeats and restates the arguments and 
documents in support introduced earlier in these proceedings. 
Disagreeing with our conclusions without showing that we erred as a matter of law is not a ground to 
reconsider our decision. See O-S-G-, 24 I&N Dec. at 58. The Petitioner has not demonstrated how 
we erred in our application law or USCIS policy to our decision on the Petitioner's prior motion. So 
the Petitioner has not shown proper cause for reconsidering our decision on its previous motion. 
III. CONCLUSION 
The Petitioner should note that the filing of a motion to reopen and/or reconsider does not provide any 
interim benefits such as staying the execution of any decision or extending a previously set departure 
date. 8 C.F.R. § 103.5(a)(l)(iv). The Petitioner has not demonstrated that we should either reopen 
the proceedings or reconsider our decision. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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