remanded EB-2 NIW Case: Bioinformatics

U.S. Citizenship 
and Immigration 
Services 
In Re: 11283618 
Appeal of Nebraska Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 16, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a bioinformatics specialist, seeks classification as a member of the professions holding 
an advanced degree . 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). U.S. Citizenship and Immigration Services (USCIS) may grant this discretionary 
waiver of the required job offer, and thus of a labor certification, when it is in the national interest to 
do so. 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that he 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 filed a combined motion to reopen and reconsider the Director's decision. The Director 
summarily denied both motions, stating that the Petitioner "neither stated new facts supported by 
additional evidence nor provided pertinent precedent decisions to consider, establishing that the 
decision was incorrect based upon the evidence of record at the time." 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon de nova review, we will withdraw the Director's 
decision and remand the matter for the entry of a new decision consistent with the following analysis. 
I. LAW 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Because this classification requires that the 
individual's services be sought by a U.S . employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Section 203(b) of the Act sets out this sequential framework: 
(2) Aliens who are members of the professions holding advanced degrees or aliens of 
exceptional ability. -
(A) In general. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or 
who because of their exceptional ability in the sciences, arts, or business, will 
substantially benefit prospectively the national economy, cultural or 
educational interests, or welfare of the United States, and whose services in the 
sciences, arts, professions, or business are sought by an employer in the United 
States. 
(B) Waiver ofjob offer-
(i) National interest waiver. ... [T]he Attorney General may, when the Attorney 
General deems it to be in the national interest, waive the requirements of 
subparagraph (A) that an alien's services in the sciences, arts, professions, or 
business be sought by an employer in the United States. 
While neither the statute nor the pertinent regulations define the term "national interest," we set forth 
a framework for adjudicating national interest waiver petitions in the precedent decision Matter of 
Dhanasar, 26 I&N Dec. 884 (AAO 2016). Dhanasar states that after a petitioner has established 
eligibility for EB-2 classification, USCIS may, as matter of discretion, 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. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must 
state the reasons for reconsideration and establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
II. ANALYSIS 
The Director denied the petition on January 9, 2020. The Petitioner filed its combined motion with the 
Nebraska Service Center on February 4, 2020. The Director issued the second decision on March 9, 2020. 
On appeal, the Petitioner states: "A final decision was issued on March 9, 2020, denying [the] petition 
... on the basis that the petitioner had failed to establish that his endeavor is in the National Interest." 
This wording does not accurately describe the March 2020 decision, which did not address the merits of 
the petition, but instead rested solely on the determination that the Petitioner's February 2020 filing did 
not meet the requirements of a motion to reopen or a motion to reconsider. 
2 
The Petitioner states: "As the appeal is a De Novo Review, we will focus on the facts of the case as 
opposed to the legal shortcomings of the decision." While de nova review allows us to consider issues 
without deference to the Director's underlying decision, the appeal cannot simply disregard that decision. 
The appellant must specifically identify specifically erroneous conclusions oflaw or statements of fact as 
a basis for the appeal. 8 C.F.R. § 103.3(a)(l)(v). 
In order to appeal the January 2020 merits decision directly to us, the Petitioner had to file an appeal no 
later than February 11, 2020.1 The Petitioner did not file an appeal during that period. The March 2020 
decision did not reset the clock for a timely appeal of the January 2020 decision, and the merits of the 
underlying petition are not properly before us for appellate review. 
The Petitioner does not directly or specifically contest the denial of the motion to reopen. Most of the 
documents submitted with that motion are copies of previously submitted materials (such as letters), 
which introduced no new facts. The new exhibits consist primarily of background information about 
diabetes rather than facts specific to the petition. On appeal, the Petitioner does not specify what new 
facts accompanied the motion, as required by the regulation at 8 C.F.R. § 103.5(a)(2). We conclude that 
the Director properly dismissed the motion to reopen. But the motion to reconsider requires further action. 
Although the Petitioner's appeal contains little direct discussion of the Director's March 2020 decision, 
the appeal does include the assertion that the March 2020 decision "is devoid of any ... analysis of the 
legal arguments put forward in the motion." Legal arguments would fall within a motion to reconsider. 
A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the decision was based on an incorrect application of law or USCIS 
policy. A motion to reconsider must also establish that the decision was incorrect based on the evidence 
ofrecord at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
In this instance, contrary to the Director's determination, the Petitioner did cite a precedent decision on 
motion, specifically Matter of Dhanasar. (The Petitioner also cited an unpublished appellate decision 
that has no binding precedential authority.) The motion also included a lengthy argument as to why the 
January 2020 decision was incorrect based on the evidence ofrecord at the time of that decision. Initial 
review of this argument resides with the Director, not with the Administrative Appeals Office. 
Because the Director has not yet addressed the merits of the February 2020 motion to reconsider, the 
proceeding is not ripe for us to consider the Petitioner's arguments in that motion. The Director must 
at least address the Petitioner's claims and explain why they are deficient. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
1 See 8 C.F.R. §§ 103.3(a)(2)(i) and 103.8(b). 
3