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RemandedNational Interest Waiver · Motion to reopen & reconsider

Lawyer

Law & policy · decided 2024-05-23 · TSC · MAY232024_05B5203

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
    The Director's denial rested on this
    The Director further concluded that the Petitioner is well-positioned to advance his endeavor but did not satisfy the balancing test under the third prong of Dhanasar. p. 1

The decision in brief

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

Summary sentence

Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis. See in text

What the AAO decided

  • Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis. See in text
  • ORDER: The Director's decision is withdrawn. See in text
  • The matter is remanded for the entry of a new decision consistent with the foregoing analysis. See in text

Main reasons given

  • A motion that does not meet applicable requirements must be dismissed. 8 C.F.R. § 103.5(a)(4). See in text
  • The Director's decision summarily concluded that "[t]he evidence submitted with the motion to reopen does not establish that the requirements for filing a motion to reopen have been met." See in text
  • Upon de novo review, the Director properly dismissed the motion to reopen as the Petitioner did not provide any new facts and documentary evidence to support his claim that his endeavor is of national importance. See in text
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  • However, we agree with the Petitioner that the Director erred by not addressing the requirements for a motion to reconsider at 8 C.F.R. § 103.5(a)(3) or evaluating the legal arguments the Petitioner made in his brief3 An officer must fully explain the reasons for denial in order to allow the petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. 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 (3) AAO finding (4)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: MAY 23, 2024 · In Re: 31110790 · Appeal of Texas Service Center Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

    The Petitioner, a lawyer, seeks second preference immigrant classification (EB-2) 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 immigrant 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 did not establish that he merits a discretionary waiver of the job offer requirement "in the national interest." 1 Section 203(b )(2)(B)(i) of the Act. The Director dismissed the Petitioner's subsequent combined motion to reopen and reconsider, determining that it did not meet the requirements of a motion to reopen at 8 C.F.R. § 103.5(a)(2). The matter is now before us on appeal. 8 C.F.R. § 103.3.

    The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance ofthe evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's, Inc., 26 l&N Dec. 537, 537 n.2 (AAO 2015). Upon de novo review, we will withdraw the Director's decision and remand the matter for entry of a new decision consistent with the following analysis.

    Our review on appeal is generally limited to the basis for the immediate prior decision. 8 C.F.R. § 103.5(a)(l)(i), (ii). Although the Petitioner's appellate brief addresses the Director's initial denial decision dated May 19, 2023, the merits of that decision, and of the underlying petition, are not before us. Rather, the only issue before us on appeal is whether the Director properly concluded that the Petitioner's motion filing did not meet applicable requirements of a motion to reopen or a motion to reconsider.

    A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must establish that the 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). A motion that does not meet applicable requirements must be dismissed. 8 C.F.R. § 103.5(a)(4).

    Here, the Director acknowledged that the Petitioner filed a combined motion but only considered the Petitioner's motion to reopen; the decision does not reflect an evaluation of the Petitioner's motion to reconsider.

    The Director's decision summarily concluded that "[t]he evidence submitted with the motion to reopen does not establish that the requirements for filing a motion to reopen have been met." Upon de novo review, the Director properly dismissed the motion to reopen as the Petitioner did not provide any new facts and documentary evidence to support his claim that his endeavor is of national importance.

    Although the Petitioner contends on appeal that he "presented new facts" consisting of "an enhanced and more detailed Business Plan for ... the proposed endeavor," the Petitioner's brief largely referenced and reiterated the information in the business plan previously submitted in response to the Director's notice ofintent to deny. 2 Reasserting previously stated facts does not meet the requirements of a motion to reopen.

    However, we agree with the Petitioner that the Director erred by not addressing the requirements for a motion to reconsider at 8 C.F.R. § 103.5(a)(3) or evaluating the legal arguments the Petitioner made in his brief3 An officer must fully explain the reasons for denial in order to allow the petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (finding that a decision must fully explain the reasons for denying a motion to allow the respondent a meaningful opportunity to challenge the determination on appeal). As the Director has not yet addressed the merits of the Petitioner's motion to reconsider, the record of proceeding is not ripe for us to consider the Petitioner's arguments.

    We will therefore withdraw the Director's decision and remand the matter for further proceedings. On remand, the Director should address the merits of the Petitioner's claims, legal arguments, and the facts and evidence submitted on motion to reconsider, and to issue a new decision.

    ORDER: The Director's decision is withdrawn. The matter is remanded for the entry of a new decision consistent with the foregoing analysis.