The Petitioner, a restaurant manager and entrepreneur, seeks employment-based second preference (EB-2) classification as a member of the professions holding an advanced degree and/or an individual of exceptional ability, 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 had not established that the Petitioner qualified for EB-2 visa classification and that a discretionary waiver of the required job offer, and thus of the labor certification, would be in the national interest. The Petitioner appealed the Director's decision, and we summarily dismissed the appeal as the Petitioner did not identify any specific legal or factual error in the Director's decision on his Form I-290B, Notice of Appeal or Motion, and did not submit his brief and/or additional evidence to us within 30 days of filing the appeal as he indicated on his Form I-290B.
The Petitioner filed a combined motion to reopen and reconsider, which we dismissed because the Petitioner had not established new facts relevant to our appellate decision that would warrant reopening of the proceedings, nor has he shown that we erred as a matter oflaw or USCIS policy. We dismissed a subsequent combined motion to reopen and reconsider, affirming our prior decisions and explaining why the Petitioner failed to establish eligibility for the benefit sought. 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 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motions.
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). 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. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that new evidence have the potential to change the outcome).
In support ofhis motion to reopen, the Petitioner resubmits previously provided documents along with an updated brief In the brief, the Petitioner expresses his plans to work as a general and operations manager and stresses his eligibility for the EB-2 classification as a member of the professions holding an advanced degree and an individual of exceptional ability. The Petitioner further maintains his proposed endeavor's national importance, that he is well positioned to advance it, and that on balance it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. As noted above, the scope of a motion is limited to "the prior decision" and "the latest decision in the proceeding." 8 C.F.R. § 103.5(a)(l)(i), (ii). Therefore, we will only consider new evidence to the extent that it pertains to our latest decision dismissing the motion to reopen. Here, the Petitioner has not provided new facts to establish that we erred in dismissing the prior motion. Because the Petitioner has not established new facts that would warrant reopening of the proceeding, we have no basis to reopen our prior decision. We will not re-adjudicate the petition anew and, therefore, the underlying petition remains denied.
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.
On motion to reconsider, the Petitioner does not explain how we erroneously dismissed his appeal. The Petitioner also does not explain how our appellate decision was based on an incorrect application of law or USCIS policy and that our decision was incorrect based on the evidence in the record at the time of the decision.
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the Petitioner has not established eligibility. On motion to reconsider, the Petitioner has not established that our previous decision was based on an incorrect application of law or policy at the time we issued our decision. Therefore, the motion 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.