remanded EB-2 NIW Case: Sound Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: AUG . 05, 2024 In Re: 32194515 
Appeal of Nebraska Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a sound engineer technician, seeks second preference immigrant classification as an 
advanced degree professional and 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 had not 
established he was an individual of exceptional ability. Notably, the Director stated that the Petitioner 
submitted no evidence to show he has an advanced degree. The Director stated that because the Petitioner 
had not shown he met the EB-2 classification, the threshold requirement for a national interest waiver, 
she did not need to do a final merits determination or review whether he was eligible for a national interest 
waiver under the Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), framework. The Petitioner 
subsequently filed a combined motion to reopen and motion to reconsider, which the Director 
dismissed. The Petitioner now appeals the Director's dismissal of the combined motions. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence . 
Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter 
de novo. Matter of Christa's, Inc., 26 I&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo 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 
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. Section 203(b )(2)(B)(i) of the Act. 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. 
Advanced degree means any United States academic or professional degree or a foreign equivalent 
degree above that of baccalaureate . 8 C.F.R. § 204.5(k)(2). A United States baccalaureate degree or 
a foreign equivalent degree followed by at least five years of progressive experience in the specialty 
shall be considered the equivalent of a master's degree. Id. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. Id. 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. See 6 USCIS Policy 
Manual F .5(8)(2), https://www.uscis.gov/policymanual. 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 a degree of expertise significantly above that ordinarily encountered in the field. 
Id. 
Once a petitioner demonstrates eligibility for the underlying EB-2 classification, they must then 
establish that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. While neither the statute nor the pertinent regulations define the 
term "national interest," Matter of Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the 
framework for adjudicating national interest waiver petitions. Dhanasar states that U.S. Citizenship 
and Immigration Services (USCIS) may, as matter of discretion, 1 grant a national interest waiver if 
the petitioner demonstrates that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
Id. 
II. ANALYSIS 
As a preliminary matter, we emphasize that the Petitioner has not appealed the June 5, 2023, denial of 
the Form 1-140 itself, but rather the Director's subsequent dismissal of his combined motions to reopen 
and reconsider dated January 2, 2024. In the January 2024 decision, the Director did not affirm the 
prior denial but rather, the Director concluded that the motions did not meet the applicable 
requirements. Therefore, the question before us on appeal is whether the Director erred in dismissing 
the combined motions. Although the June 2023 denial is not before us, we will refer to portions of 
that decision for a complete review. 
The Petitioner initially claimed he satisfied all six of the categories of initial evidence to qualify for 
the EB-2 visa classification as an individual of exceptional ability. The Director, who issued a request 
for evidence before denying the petition, determined that the Petitioner had met only two of the 
criteria: 8 C.F.R. § 204.5(k)(3)(ii)(A), related to an official academic record and 8 C.F.R. 
§ 204.5(k)(3)(ii)(C), related to a license to practice his profession. She then concluded that because 
1 See Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Ninth, Eleventh, and D.C. Circuit Courts (and Third 
in an unpublished decision) in concluding that USCIS' decision to grant or deny a national interest waiver to be 
discretionary in nature). 
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the Petitioner had not met at least three of these categories of evidence, no purpose was served in a 
final merits determination or review of his eligibility for a national interest waiver. 
The Petitioner then filed combined motions to reopen and reconsider on the Director's decision, which 
were dismissed. The Director dismissed the motion to reopen concluding that the Petitioner did not 
submit any new evidence, but only resubmitted the identical evidence submitted with his response to 
the request for evidence. The Director explained that this evidence had already been considered in the 
initial denial and thus the Petitioner failed to provide new evidence to overcome the reasons for denial. 
The Director also explained, regarding the motion to reconsider, that the Petitioner failed to state a 
reason for reconsideration supported by any pertinent precedent law. 
On appeal, the Petitioner does not address the reasons for the Director's dismissal of his motion to 
reopen or motion to reconsider. He appears to submit the same evidence he provided with his 
combined motions, addressing the eligibility criteria for the EB-2 classification and the national 
interest waiver broadly, without any focus on the specific reasons for the Director's initial June 2023 
denial or the dismissal of his January 2024 motions. 
A. Motion to Reconsider 
A motion to reconsider must state the reasons for reconsideration and 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 
the motion to reconsider, the Petitioner alleged no specific error in the June 2023 denial notice. The 
motion brief did not contend that the Director's decision was based on an incorrect application of law 
or policy, nor was it supported by any relevant caselaw, statute, or regulation. Since the motion did 
not meet the requirements identified above, the Director properly dismissed the motion to reconsider. 
B. Motion to Reopen 
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 that does not meet 
applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). A motion may be granted that 
satisfies these requirements and demonstrates eligibility for the requested benefit. See Matter of 
Coelho, 20 I&N Dec. 464,473 (BIA 1992) (requiring that new evidence have the potential to change 
the outcome). 
Here, upon close review of the documentation submitted on motion and submitted in response to the 
request for evidence, we find that it appears the Petitioner did submit two new pieces of evidence to 
show he met the criterion under 8 C.F.R. § 204.5(k)(3)(ii)(E), evidence of membership in a 
professional association. The Petitioner submitted two membership cards showing he was a member 
of each association from 2016 and 2018. These were not considered by the Director and may change 
the outcome of the decision by establishing he meets three of the six criteria. 
In addition, in his initial petition and on motion, the Petitioner asserts he is an advanced degree holder 
and presents evidence in support. However, the Director did not address this evidence, in either the 
initial decision or the motion decision, in the context of being an advanced degree professional for 
EB-2 visa classification. This evidence included his diploma, two course completion certificates, other 
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curriculum taken through a professional association, and his work experience. Instead, the Director 
states in his initial decision that the Petitioner submitted no evidence that he has an advanced degree. 
What is required is that the previous trier of fact consider the issues raised and announce its decision 
in terms sufficient to enable an appellate body to perceive that it has heard and thought and not merely 
reacted. Rodriguez-Jimenez v. Garland, 20 F.4th 434, 435 (9th Cir. 2021) (citing Najmabadi v. 
Holder, 597 F.3d 983, 990 (9th Cir. 2010); Farah v. US. Att'y Gen., 12 F.4th 1312, 1329 (11th Cir. 
2021); see also Osuchukwu v. INS, 744 F.2d 1136, 1143 (5th Cir. 1984). 
Here, there have been two significant oversights. First, the Director erroneously states that the 
Petitioner did not submit evidence of being an advanced degree professional. Second, the Director 
claims, in her motion to reopen analysis, that the Petitioner submitted no new evidence, which was 
incorrect because at least two new pieces of relevant evidence were submitted. Given these errors, we 
cannot be confident that the Director reviewed the entire record, and so we will withdraw the decision 
and remand this matter for further consideration and entry of a new determination. On remand, the 
Director should review the entire record and determine whether the Petitioner has established 
eligibility for both the underlying EB-2 classification as well as the Dhanasar framework. 2 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
2 Although we will not reach an analysis of the national interest waiver Dhanasar framework here, the current record does 
not appear to show the Petitioner meets all prongs of this framework. 
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