The Petitioner, an economist, 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 ofthe Texas Service Center denied the petition, concluding that the Petitioner qualified for classification as a member of the professions holding an advanced degree, but that she had not established 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 or not the unfavorable decision has been the subject of any judicial proceeding. See 8 C.F.R. § 103.5(a)(l)(iii)(C). On appeal, the Petitioner submits a brief arguing that she meets the requirements for a national interest waiver. Thjs brief includes a statement indicating that "[t]his petition is not and has not been the subject of any judicial proceedings."
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 ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). Upon 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 oflitigation involving the originally filed petition. See, e.g. Memorandum from Richard E. Norton, Assoc. Comm'r for Examinations, Immigration and Naturalization Service, Adjudication ofPetitions and Applications which are in Litigation or Pending Appeal (Feb. 8, 1989). The statement that the Petitioner submitted with her appeal addresses the Director's sole ground for dismissal by confirming that her petition is not and has not been the subject of any judicial proceeding.
Accordingly, we will 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.