dismissed EB-2 NIW Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 20490060 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 3, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as an individual of exceptional ability, 
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. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner did not 
qualify for the underlying classification as an individual of exceptional ability and 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. We also dismissed the 
subsequently filed motion to reopen and motion to reconsider. The matter is now before us on a 
motion to reconsider. With the motion, the Petitioner submits a brief. 
In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit 
sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motion. 
I. LAW 
By regulation, the scope of a motion is limited to "the prior decision ." 8 C.F.R. § 103.5(a)(l)(i) . The 
filing before us is not a motion to reconsider the denial of the petition. Instead, it is a motion to 
reconsider our most recent decision. In other words, we examine any new arguments to the extent that 
they pertain to our prior dismissal of the Petitioner's motion to reopen and motion to reconsider . 
Therefore, we cannot consider new objections to the earlier denial, and the Petitioner cannot use the 
present filing to make new allegations of error at prior stages of the proceeding. 
A motion to reconsider must 1) state the reasons for reconsideration, 2) establish that the decision was 
based on an incorrect application of law or USCIS 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). The 
Board oflmmigration Appeals (BIA) generally provides that a motion to reconsider asserts that at the 
time of the previous decision, an error was made. It questions the decision for alleged errors in 
appraising the facts and the law. The very nature of a motion to reconsider is that the original decision 
was defective in some regard. See Matter of Cerna, 20 I&N Dec. 399,402 (BIA 1991). 
TI. ANALYSIS 
In dismissing the prior motion to reopen and motion to reconsider, we concluded that the Petitioner 
did not establish 1) that he qualifies for the underlying classification either as an advanced degree 
professional or as an individual of exceptional ability, 2) the national importance of his specific 
proposed endeavor, as required by the first prong of the Dhanasar analysis and, thus, he had not 
established that he is eligible for or otherwise merits a national interest waiver as a matter of discretion, 
and 3) "proper cause for reopening the proceedings or reconsidering our decision." 
Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), 1 states that after a petitioner has established 
eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter 
of discretion 2, grant a national interest waiver if the petitioner demonstrates: (1) that the foreign 
national's proposed endeavor has 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. 3 
On motion, the Petitioner generally disagrees with our prior decision, but does not demonstrate that it 
was 1) based on an incorrect application oflaw or USCIS policy and 2) incorrect based on the evidence 
in the record at the time of the decision. As explained in our prior decisions and above, the Petitioner 
must first establish that he is eligible for the underlying classification, either as an advanced degree 
professional 4 or as an individual of exceptional ability. 
The Petitioner argues that "a diploma does not define someone's ability" and incorrectly asserts that 
"a minimum often years professional work experience may satisfy the advanced degree requirement," 
but fails to demonstrate that he has an underlying U.S. bachelor's degree or its foreign equivalent, in 
addition to five years of post-baccalaureate experience to establish that he is an advanced degree 
professional as required by the regulation at 8 C.F.R. § 204.5(k)(3)(i)(B). 5 As we previously 
explained, the Petitioner has not submitted "[ a ]n official academic record showing that [he] has a 
United States baccalaureate degree or a foreign equivalent degree." Further, without evidence of such 
a degree, we cannot conclude that any of the Petitioner's experience qualifies as "post-baccalaureate." 
Id. 
1 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) (NYSDOT). 
2 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). 
3 See Dhanasar, 26 I&N Dec. at 888-91, for elaboration on these three prongs. 
4 The Petitioner raised this claim for the first time on appeal. 
5 Compare 8 C.F.R. § 214.2(h)(4)(iii)(D) (defining "equivalence to completion of a United States baccalaureate or higher 
degree" for purposes of H- lB classification.) Where combinations of education or experience may equate to baccalaureate 
degrees, the Act and regulations state so explicitly. See section 214(i)(2)(C) of the Act, 8 U.S.C. § l 184(i)(2)(C) (allowing H­
IB workers to have "experience in the specialty equivalent to the completion of such [bachelor's] degree"); see also 8 C.F.R. 
§ 2 l 4.2(h)( 4 )(iii)( C)( 4) (H- IB workers may have "education, specialized training, and/or progressively responsible experience 
that is equivalent to completion of a United States baccalaureate ... degree"). The regulations pertaining to the immigrant 
classification sought in this matter do not contain similar language. 
2 
Regarding the Petitioner's claims that he is an individual of exceptional ability, as discussed in 
previous decisions, the record does not establish that he meets any of the criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F). Further, in our prior decision, we explained that the Petitioner did not provide 
"any new documentary evidence" or "address the lack of specific arguments on appeal" regarding the 
claimed criteria. While the Petitioner continues to claim that he qualifies for the requested 
classification, he has not demonstrated that our prior decision was in error. 
Because the record does not establish that Petitioner meets the underlying visa classification as either 
an advanced degree professional or an individual of exceptional ability, further discussion of the 
Dhanasar analysis would serve no meaningful purpose. 
The Petitioner has not established that our prior decision, the dismissal of his motion to reopen and 
motion to reconsider, was based on an incorrect application of law or USCIS policy or that it was 
incorrect based on the evidence in the record at the time of the decision as required by 8 C.F.R. 
§ 103.5(a)(3). 
ORDER: The motion to reconsider is dismissed. 
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