remanded EB-2 NIW Case: Speech Therapy

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 17, 2024 In Re: 33398372 
Appeal of Texas Service Center Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a speech therapist, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree, 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 that a waiver of the required job offer, and thus of the labor certification, would be in the 
national interest. The Petitioner filed a motion to reopen and reconsider, and the Director subsequently 
denied that motion. The matter is now before us on appeal pursuant to 8 C.F .R. § 103 .3. The Petitioner 
bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. Matter of 
Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. 
Matter of Christo '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. 
To qualify for the underlying EB-2 visa classification, a petitioner must establish they are an advanced 
degree professional or an individual of exceptional ability in the sciences, arts, or business. Section 
203(b )(2)(A) of the Act. 
If a petitioner establishes eligibility for the underlying EB-2 classification, they must then demonstrate 
that they merit a discretionary waiver of the job offer requirement "in the national interest." 
Section 203(b )(2)(B)(i) of the Act. Our precedent decision, Matter ofDhanasar, 26 l&N Dec. 884, 
889 (AAO 2016), provides the framework for adjudicating national interest waiver petitions. 
As noted, the Director previously found although the Petitioner qualifies for EB-2 classification as a 
member of the professions holding an advanced degree, but she did not establish that a waiver of the 
required job offer would be in the national interest. The Director then dismissed the Petitioner's 
motion to reopen and reconsider that decision, finding the motion was untimely filed. 
On appeal, the Petitioner contends the Director erroneously dismissed her motion without rendering a 
decision on its merits because they did not consider her motion under the applicable COVID-19-
related flexibilities to the filing deadlines. Specifically, she cites the U.S. Citizenship and Immigration 
Services (USCIS) policy guidance issued on January 24, 2023, which extended those flexibilities 
related to the filing of the Form I-290B, Notice of Appeal or Motion. That release of policy guidance 
states "USCIS will consider a Form I-290B ... if: [t]he form was filed up to 90 calendar days from 
the issuance of a decision we made; and [w]e made that decision between Nov. 1, 2021, and March 
23, 2023, inclusive." See USCIS Alert, "USCIS Extends COVID-19-related Flexibilities", (Jan. 24, 
2023), https://www.uscis.gov/newsroom/alerts/uscis-extends-covid-19-related-flexibilities-l. Here, 
the Director issued the decision denying the petition on December 12, 2022, and the Petitioner filed 
her Form I-290B and motion with the Director on February 8, 2023 - 59 days after the adverse 
decision. As such, her motion should have been considered timely filed under the USCIS policy at 
the time of filing, which allowed up to 90 calendar days for the filing of such motions. Therefore, we 
agree with the Petitioner's assertion on appeal that the Director incorrectly dismissed her motion as 
untimely filed. We will withdraw the Director's decision and remand the matter for entry of a full 
decision on the merits of the motion. 
ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new 
decision consistent with the foregoing analysis. 
2