remanded EB-2 NIW Case: Law

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: AUG. 28, 2023 In Re: 28943260 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an attorney, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree or, in the alternative, as an 
individual of exceptional ability in the sciences, arts or business. 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 Texas Service Center denied the petition, concluding that the record did not 
establish that the Petitioner merits a discretionary waiver of the job offer requirement " in the national 
interest". The Director dismissed the subsequent combined motions to reopen and reconsider and 
ordered that the original decision denying the Form 1-140 remain undisturbed. The matter is now 
before us on appeal, where we will consider the Petitioner's appeal as it relates to the Director's 
decision to deny the Petitioner's motions to reopen and reconsider. 8 C.F.R. § 103.3. 
The Petitioner bears the burden of proof to demonstrate el igibi I ity by a preponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de nova. Matter of Christa 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de nova review, 
we will withdraw the Director's decision and remand the matter for entry of a new decision consistent 
with the following analysis. 
I. LAW 
A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 
8 C.F.R. § 103.5(a)(2). 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). We may grant a motion that 
satisfies these requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
For the underlying petition, the Director determined that the Petitioner did not qualify for a national 
interest waiver under the Dhanasar framework. In support of the combined motions to reopen and 
reconsider, the Petitioner submitted her statement and re-submitted documentation provided with the 
petition. She claimed her previous counsel made errors and that she did not receive the request for 
evidence notice. She requested her case be reopened and reconsidered since her petition was denied 
through no fault of her own. She provided an analysis of documentation she submitted with the 
petition, asserting the evidence meets the three prongs of the Dhanasar framework and establishes her 
eligibility for the national interest waiver. 
Preliminarily, we note that the appellate brief primarily addresses the Director's denial of her petition. 
1However, that matter is not before us. The only issue before us is whether the Director properly 
dismissed the Petitioner's motions to reopen and to reconsider. Upon de nova review, we find he did 
not. 
For the motion to reopen, the Director found, "The evidence submitted with the motions to reopen and 
reconsider does not establish that the requirements for filing a motion to reopen have been met." The 
decision then analyzed the evidence in the record, concluding that it did not meet any of the three 
prongs of the Dhanasar framework and that the Petitioner did not establish eligibility for the national 
interest waiver. 
However, the Director's decision did not include a decision on the motion to reconsider. 
The Director did note that the Form 1-290B for the motions was not accompanied by astatement about 
whether or not the unfavorable decision has been the subject of any judicial proceeding. See 8 C.F.R. 
§ 103.5(a){l)(iii)(C). The required statement on judicial proceedings under 8 C.F.R. § 
103.5(a)(l)(iii)(C) is a procedural rule that helps USCIS identify those cases involving judicial 
proceedings so they can be held in abeyance pending the outcome of litigation involving the originally 
filed petition. See, e.g. Memorandum from Richard E. Norton, Assoc. Comm'r for Examinations, 
Immigration and Naturalization Service, Adjudication of Petitions and Applications which are in 
Litigation or Pending Appeal (Feb. 8, 1989). This provision applies equally to the Petitioner's motion 
to reopen, which the Director adjudicated on its merits. We therefore remand for the Director to issue 
a decision on the merits of the Petitioner's motion to reconsider. 
1 The Petitioner filed this appeal indicating she was appealing the underlying Form 1-140 petition. Initially, we rejected 
this appeal as being untimely filed. However, after further review, we re-opened our rejection decision. USCIS records 
show that after denial of the underlying Form 1-140 petition, the Petitioner filed the combined motions to reopen and 
reconsider, and the Director issued a decision dismissing the motions. Although, the Petitioner's appeal does not address 
the Director's decision on the motions, we limit our review to the Director's most recent decision dismissing the 
Petitioner's combined motions to reopen and reconsider. 
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111. CONCLUSION 
We withdraw the Director's decision and remand the matter for a new decision which addresses 
whether the Petitioner's motion satisfies the requirements of a motion to reconsider at 8 C.F.R. § 
103.5(a)(3). If the case meets the requirements for the motion to reconsider, the Director should 
determine if the Petitioner has established eligibility for the underlying classification and for anational 
interest waiver and to enter a new decision. The Director may request any additional evidence 
considered pertinent to the new determination. As such, we express no opinion regarding the ultimate 
resolution of this case on remand. 
ORDER: The Director's decision is withdrawn. The matter is remanded for entry of a new 
decision consistent with the foregoing analysis. 
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