remanded EB-2 NIW Case: Unknown

U.S. Citizenship 
and Immigration 
Services 
In Re: 22678653 
Appeal of Texas Service Center Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 19, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference 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 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 Texas Service Center denied the petition, concluding that the Petitioner did not 
establish that he is a member of the professions holding an advanced degree or that a waiver of the 
required job offer, and thus of the labor certification, would be in the national interest. The Director 
dismissed the subsequent combined motion to reopen and reconsider solely because it was not 
accompanied by a statement about whether the unfavorable decision has been the subject of any 
judicial proceeding . See 8 C.F.R. § 103.5(a)(l)(iii)(C) . The matter is now before us on appeal. 
The Petitioner has the burden to establish eligibility for the requested benefit by a preponderance of 
the evidence . See Section 291 of the Act, 8 U.S .C. § 1361; Matter of Chawathe, 25 I&N Dec. 369, 
375 (AAO 2010). Upon de nova review, we will withdraw the Director's decision and remand the 
matter for issuance of a new decision. 
The required statement on judicial proceedings under 8 C.F.R . § 103.5(a)(l)(iii)(C) is a procedural 
rule that helps U.S. Citizenship and Immigration Services 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). 
On appeal, the Petitioner's submission includes a statement that the Director's original decision 
denying his petition is not the subject of any judicial proceeding, the sole ground for dismissal. As a 
result, we withdraw the Director's decision and remand the matter for a new decision on the merits 
addressing whether the Petitioner's combined motion satisfies the requirements of a motion to reopen 
and a motion to reconsider at 8 C.F.R . § 103.5(a)(2) and (3). 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
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