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MotionNational Interest Waiver · Motion to reconsider

Skydiving instructor

Education · decided 2024-07-29 · TSC · JUL292024_02B5203

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

The Director of the 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 he had not established that a waiver ofthe required job offer, and thus ofthe labor certification, would be in the national interest. See in text

What the AAO decided

  • Upon review, we will dismiss the motion. See in text
  • Accordingly, 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
Read the full decision (2 pages)

Objections found (0)

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    Full decision

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

    Highlighted: Outcome (4)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: JUL. 29, 2024 · In Re: 32194012 · Motion on Administrative Appeals Office Decision · Form I-140, Immigrant Petition for Alien Workers (National Interest Waiver)

    The Petitioner, a skydiving instructor, seeks employment-based second preference (EB-2) classification as a member of the professions holding an advanced degree or as 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 qualified for classification as a member of the professions holding an advanced degree, but that he had not established that a waiver ofthe required job offer, and thus ofthe labor certification, would be in the national interest. We dismissed a subsequent appeal. The matter is now before us on a motion to reconsider.

    The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance ofthe 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.

    On motion to reconsider, the Petitioner contests the correctness of the Director's decision. In support of the motion, the Petitioner submits a brief identical to the one he submitted with the appeal. The brief therefore does not address the conclusions from our prior decision-the one that is the subject of his motion- or cite to specific instances where we misapplied law or policy in dismissing the appeal. Rather, since it is identical to the brief submitted on appeal, the Petitioner's brief discusses the Director's decision and reiterates arguments regarding the Petitioner's eligibility for the national interest waiver.

    A motion that does not satisfy the applicable requirements must be dismissed. 8 C.F.R. § 103.5(a)(4). As previously noted, a motion to reconsider must state the reasons for reconsideration; be supported by any pertinent precedent decision to establish that the decision was based on an incorrect application p. 2 of law or policy; and establish that the decision was incorrect based on the evidence in the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). Merely submitting a brief is not sufficient to meet the requirements of a motion to reconsider under 8 C.F.R. § 103.5(a)(3). See Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (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). Rather, the moving party must demonstrate that the immediate prior decision was based on an incorrect application of law or USCIS policy. Here, the Petitioner's motion does not meet these requirements.

    Accordingly, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). The Petitioner's appeal therefore remains dismissed, and his underlying petition remains denied.

    ORDER: The motion to reconsider is dismissed.