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MotionNational Interest Waiver · Motion to reopen & reconsider

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Other / unclear · decided 2023-12-04 · TSC · DEC042023_03B5203

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 decided

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

  • 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

A petitioner cannot meet the requirements of a reconsider by broadly disagreeing with our conclusions; the motion must demonstrate how we erred as a matter of law or policy. See in text

What the AAO decided

  • Therefore, the motions will be dismissed. 8 C.F.R. § 103.5(a)(4). See in text
  • ORDER: The motion to reopen is dismissed. See in text
  • FURTHER ORDER: The motion to reconsider is dismissed. See in text
Read the full decision (2 pages)

Objections found (0)

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No catalog objection was detected in the analysis section.

    Full decision

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

    Highlighted: Outcome (6)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: DEC. 04, 2023 · In Re: 29156346 · Motion on Administrative Appeals Office Decision · Form 1-140, Immigrant Petition for Alien Workers (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 the evidence in the record did not support a waiver of the required job offer, and thus of a labor certification, would be in the national interest. We dismissed a subsequent appeal. The matter is now before us on combined motions to reopen and reconsider.

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

    A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). See also Matter of Coelho, 20 l&N Dec. 464, 473 (BIA 1992) (requiring that new evidence have the potential to change the outcome). A motion to reconsider must establish that our prior decision was based on an incorrect application oflaw 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. We conclude that the Petitioner's objections generally alleging that we erred in dismissing their appeal without identifying any specific errors on our part in doing so are insufficient to reopen or reconsider our previous decision. The Petitioner also states that we did not consider all the evidence that they submitted in support of the petition. The Petitioner requests that we reopen or reconsider "the adverse decision [on your] Form 1-140 and ... give full consideration on all the submitted documents." The Petitioner does not, however, explain with any specificity how we failed to "give full consideration" in our decision dismissing the appeal. To reopen the previous proceedings, the Petitioner must state new facts supported by documentary evidence demonstrating a potential to change the outcome. See Matter ofCoehlo, 20 l&N Dec. at 473. And to establish merit for reconsideration ofour latest decision, p. 2 the Petitioner must both state the reasons why they believe the most recent decision was based on an incorrect application of law or policy and must also specifically cite the laws, regulations, precedent decisions, and/or binding policies they believe we misapplied in our prior decision. A petitioner cannot meet the requirements of a reconsider by broadly disagreeing with our conclusions; the motion must demonstrate how we erred as a matter of law or policy. See Matter ofO-S-G-, 24 I&N Dec. at 56-58 (finding that a motion to reconsider is not a process by which the party may submit in essence, the same brief and seek reconsideration by generally alleging error in the prior decision). The Petitioner also alleges that their previously submitted documents "were not properly analyzed by the Service, violating the Fourth Amendment of the Constitution of the United States of America." The Fourth Amendment in part prohibits "unreasonable searches and seizures." U.S. Const. amend. IV. We conclude the Petitioner's citation to the Fourth Amendment is not relevant to the matter at hand as they have not explained how we violated the Fourth Amendment in dismissing their appeal. Citing to an authority that is not relevant to the grounds of the unfavorable decision will not meet the requirements of a motion to reconsider. See Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) ("A motion to reconsider is not a mechanism by which a party may file a new brief before the Board raising additional legal arguments that are unrelated to those issues raised before the Immigration Judge and on appeal.").

    The Petitioner has not submitted additional evidence in support of the motion to reopen nor have they established that our previous decision was based on an incorrect application of law or policy at the time we issued our decision. Therefore, the motions will be dismissed. 8 C.F.R. § 103.5(a)(4). ORDER: The motion to reopen is dismissed.

    FURTHER ORDER: The motion to reconsider is dismissed.