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MotionNational Interest Waiver · Motion to reconsider

Electrical engineer

Engineering · decided 2023-08-22 · TSC · AUG222023_01B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided

    No finding on this in the appeals office's own words.

  • Prong 1Merit and national importanceNot met
    Why
    We dismissed the appeal because we concluded that without providing consistent information as to the proposed endeavor, the Petitioner had not established the endeavor's national importance, and consequently, could not demonstrate eligibility under the first prong of the Dhanasar framework, as required. p. 2
  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

t The Director of the Texas Service Center denied the petition, concluding that although the Petitioner qualifies as an advanced degree professional, the Petitioner did not establish that a waiver of the job offer requirement is in the national interest. See in text

What the AAO decided

  • We dismissed the appeal because we concluded that without providing consistent information as to the proposed endeavor, the Petitioner had not established the endeavor's national importance, and consequently, could not demonstrate eligibility under the first prong of the Dhanasar framework, as required. See in text
  • Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). See in text
  • ORDER: The motion to reconsider is dismissed. See in text

Main reasons given

  • In our prior decision, incorporated here by reference, we determined that the Petitioner did not provide consistent information regarding his proposed endeavor. See in text
  • Moreover, we noted that although this lack of clarity in the proposed endeavor was also the stated basis for the Director's denial, the Petitioner did not provide clarification as to his proposed endeavor on appeal or even address this finding by the Director. See in text
  • As the Petitioner has not established that our previous decision was based on an incorrect application of law or policy, or that it was incorrect based on the evidence then before us, he has not met the requirements for a motion to reconsider. 8 C.F.R. § 103.5(a)(3). See in text
Read the full decision (2 pages)

Objections found (2)

Automated tags. Each shows the sentence that triggered it.

  • ORDER: The motion to reconsider is dismissed. 3 The only specific law or policy cited by the Petitioner on motion is his claim that the Director did not properly analyze the documents in the record, thus "violating the Fourth Amendment ofthe Constitution ofthe United States of America as Petitioner provided timely and proper notice of his RFE response to USCTS." See in text (p. 2)
  • The Petitioner states that the Director's denial was therefore "contrary to law or policy, and unsupported by the evidence of record." See in text (p. 2)

Full decision

OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

Highlighted: Outcome (5) AAO finding (3) Tagged objection (1)Matter of X citation
Decision header
U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: AUG. 22, 2023 · In Re: 27988065 · Motion on Administrative Appeals Office Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

The Petitioner, an electrical engineer, seeks classification as a member of the professions holding an advanced degree. 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. 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. t The Director of the Texas Service Center denied the petition, concluding that although the Petitioner qualifies as an advanced degree professional, the Petitioner did not establish that a waiver of the job offer requirement is in the national interest. We dismissed a subsequent appeal. The matter is now before us on motion to reconsider. 2

The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motion.

A motion to reconsider must establish that our prior 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). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit.

In our prior decision, incorporated here by reference, we determined that the Petitioner did not provide consistent information regarding his proposed endeavor. The Petitioner's initial filing described his general intent to continue working in the field of electrical engineering. However, in response to the Director's notice of intent to deny (NOID), the Petitioner proposed to establish a company that would provide a range of engineering services. We dismissed the appeal because we concluded that without providing consistent information as to the proposed endeavor, the Petitioner had not established the endeavor's national importance, and consequently, could not demonstrate eligibility under the first prong of the Dhanasar framework, as required. Moreover, we noted that although this lack of clarity in the proposed endeavor was also the stated basis for the Director's denial, the Petitioner did not provide clarification as to his proposed endeavor on appeal or even address this finding by the Director. On motion, the Petitioner requests we reconsider our prior decision. In support of the motion, the Petitioner submits a brief statement in which he broadly asserts that USCIS did not "give due regard" to the evidence in the record. The Petitioner states that the Director's denial was therefore "contrary to law or policy, and unsupported by the evidence of record."Claims not backed by documents However, the Petitioner makes only this general assertion in a conclusive manner that the denial was improper, without identifying any specific law or policy that was incorrectly applied to any specific evidence in the record. 3 Moreover, the only decision properly before us on motion is our March 2023 appellate decision, not the Director's July 2022 denial ofthe petition. The scope ofa motion is limited to "the prior decision" and "the latest decision in the proceeding." 8 C.F.R. § 103.S(a)(l)(i), (ii). But the Petitioner does not discuss our decision to dismiss his appeal, nor identify any incorrect application of law or policy in that decision, nor specify how we erred in dismissing his appeal based on the evidence before us at the time of the decision. 8 C.F.R. § 103.5(a)(3).

As the Petitioner has not established that our previous decision was based on an incorrect application of law or policy, or that it was incorrect based on the evidence then before us, he has not met the requirements for a motion to reconsider. 8 C.F.R. § 103.5(a)(3). Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4).

ORDER: The motion to reconsider is dismissed.Citation record not persuasive