dismissed EB-2 NIW Case: Unspecified Specialty

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 21, 2024 In Re: 34810176 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) immigrant classification, 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 Texas Service Center denied the petition, concluding that the record did not 
establish the Petitioner's eligibility for EB-2 immigrant classification or the requested national interest 
waiver. The Director subsequently dismissed a combined motion to reopen and motion to reconsider. 
The Petitioner now appeals the Director's dismissal of the combined motions pursuant to 
8 C.F.R. §§ 103.3 and 103.5(a)(6). 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, 
we will dismiss the appeal. 
As a preliminary matter, we emphasize that the appeal before us relates to the Director's April 2024 
dismissal of the Petitioner's combined motion to reopen and motion to reconsider, not the September 
2023 denial of the underlying petition. Therefore, the question before us is whether the Director erred 
in dismissing the combined motion. 
In the September 2023 decision, the Director concluded that the Petitioner was not eligible for the 
underlying EB-2 immigrant classification as an advanced degree professional I because she established 
only two years, three months, and nine days of post-baccalaureate experience in the specialty. 2 And the 
1 An advanced degree is any U.S. academic or professional degree or a foreign equivalent degree above that of a bachelor's 
degree. A U.S. bachelor's degree or foreign equivalent degree followed by five years of progressive experience in the 
specialty is the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2). 
2 The Director acknowledged the Petitioner's submission of multiple letters ofrecommendation discussing her experience 
in the field, but determined that, with the exception of one letter, the Petitioner had not shown that these letters were from 
former employers. See 8 C.F.R. § 204.5(k)(3)(i)(B) (stating that, unless a Petitioner establishes that such evidence is 
unavailable , "[e]vidence relating to qualifying experience .. . shall be in the fo1m of letter(s) from current or former 
employer(s)") 
Director determined she did not qualify as an individual of exceptional ability3 because she satisfied 
only two of the six initial regulatory criteria, 8 C.F.R. §§ 204.5(k)(3)(ii)(A) and (C), relating to 
attainment of a degree, diploma, certificate, or similar award and a license or certification for a 
profession or occupation4. 
Regarding the national interest waiver5, the Director determined that the Petitioner made a material 
change to her proposed endeavor in response to the request for evidence (RFE). The Director, citing 
to Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998), concluded that she was attempting 
"to make an apparently deficient petition conform to Service requirements" and explained that per 
Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971)," [a] petitioner must establish eligibility 
at the time of filing" and that "a petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts." 6 
A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 7 
8 C.F.R. § l 03.5(a)(2). A motion to reconsider must establish that the 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). U.S. Citizenship and 
Immigration Services (USCIS) may grant motions that satisfy these requirements and demonstrate 
eligibility for the requested benefit. 
On motion, the Petitioner submitted primarily the same evidence she previously provided, but did 
supplement the record with an additional letter of recommendation as well as documents relating to 
the registration of her company. She also offered the same or similar arguments asserting her 
eligibility for the underlying classification and national interest waiver, but did not address, for 
example, the Director's conclusion that she had materially changed her proposed endeavor in response 
to the RFE. Similarly, the Petitioner did not address the Director's specific conclusions regarding the 
3 Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or 
business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation that satisfies at least three of six 
categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting at least three criteria, however, does not, in and of 
itself: establish eligibility for this classification. If a petitioner does so, we will then conduct a final merits determination 
to decide whether the evidence in its totality shows that they are recognized as having the requisite degree of expertise and 
will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Section 
203(b)(2)(A) of the Act. 
4 We note that, in concluding the Petitioner satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) relating to a license to 
practice the profession or certification for the occupation, the Director relied on the certificates of completion of several 
courses relating to the Petitioner's field. We disagree. While the certificates established that the Petitioner completed 
relevant courses, the Petitioner did not explain how these certificates of completion are a license to practice the profession 
or certification for a particular profession or occupation as required by the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(C). 
Accordingly, the Petitioner should be prepared to address this is any future filings. 
5 USCIS may grant a national interest waiver if a petitioner demonstrates a proposed endeavor has substantial merit and 
national importance; the petitioner is well-positioned to advance the proposed endeavor; and on balance, waiving the job 
offer requirement would benefit the United States. Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016). 
6 Nevertheless, the Director acknowledged the remaining evidence in the record and concluded that the Petitioner did not 
establish the Petitioner's endeavor would result in broader implications to her field beyond the direct benefits to her 
potential employers or customers, or otherwise result in substantial economic benefits contemplated in Dhanasar. The 
Director also concluded that the record did not establish the Petitioner was well-positioned to advance her endeavor, or 
that, on balance, that it would be beneficial for the United States to waive the job offer requirement. 
7 See Matter of Coelho, 20 I&N Dec. 464, 4 73 (BIA 1992) (requiring that new evidence have the potential to change the 
outcome). 
2 
insufficient evidence establishing her experience, or otherwise explain how the Director misapplied law 
or policy in concluding that the Petitioner did not establish eligibility for the underlying classification. 
Accordingly, the Director dismissed the combined motion concluding that the Petitioner did not provide 
new facts or establish that the decision was based on an incorrect application oflaw or policy or incorrect 
based on the evidence in the record at the time of the decision. 
On appeal, the Petitioner again resubmits the same evidence already in the record, along with newly 
issued experience letters documenting her experience within the field and continues to assert her 
eligibility for both the underlying EB-2 immigrant classification, as well as her eligibility for a national 
interest waiver. However, because the Petitioner was put on notice and given a reasonable opportunity 
to provide these letters before the Director, we will not consider them for the first time on appeal. See 8 
C.F.R. § 103.2(b)(ll) (requiring all requested evidence be submitted together at one time); Matter of 
Soriano, 19 T&N Dec. 764, 766 (BIA 1988) (declining to consider new evidence submitted on appeal 
because "the petitioner was put on notice of the required evidence and given a reasonable opportunity to 
provide it for the record before the denial"). 
The reason for filing an appeal is to provide an affected party with the means to remedy what they 
perceive as an erroneous conclusion oflaw or statement of fact. See 8 C.F.R. § 103.3(a)(l)(v). It is 
insufficient to broadly assert that the Director made an improper determination. Here, the Petitioner 
does not address the Director's conclusions in its April 2024 decision, nor does she accurately describe 
them. For example, the Petitioner states that the Director erred by not recognizing her satisfaction of 
the academic record criterion relating to her exceptional ability claim, and also erred by only 
considering three of the six initial evidentiary criteria. However, the record shows that in their initial 
decision denying the petition the Director acknowledged that the Petitioner satisfied the academic 
record criterion, and also addressed each of the Petitioner's claims under each qualifying criterion. 
Additionally, in dismissing the combined motions, the Director explained why the new evidence 
submitted did not overcome their initial decision concluding that the Petitioner only met two of the six 
evidentiary criteria. And rather than identifying an erroneous conclusion of law or statement of fact 
in the decision dismissing the motions, the Petitioner continues to assert her eligibility for the national 
interest waiver based on her position as CEO for her consulting company. She again does not 
acknowledge, for example, the Director's determination that she materially changed her proposed 
endeavor, or otherwise overcome the Director's conclusion that the benefits from her proposed 
endeavor would be limited to her future customers, and not rise to the level of national importance 
contemplated in Dhanasar. 
Because the Petitioner's combined motion to reopen and reconsider did not contain new facts supported 
by affidavits or other documentary evidence overcoming the Director's decision and establishing her 
eligibility, and she did not demonstrate that the Director erred as a matter of law or policy, the Director 
properly dismissed her combined motion to reopen and reconsider. See 8 C.F.R. § 103.5(a)(4). 
For the reasons provided, the Petitioner has not established that the Director dismissed her motion in 
error or otherwise overcomes the basis for the prior decision. As such, we will not re-adjudicate the 
petition anew and, therefore, the underlying petition remains denied. 
ORDER: The appeal is dismissed. 
3