Non-Precedent Decision of the Administrative Appeals Office Date: MAY 31, 2022
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National Interest Waiver) The Petitioner, a general and operations professional, 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 Nebraska Service Center denied the petition, concluding that the Petitioner qualified for classification as a member of the professions holding an advanced degree but that the Petitioner had not established that a waiveroftherequiredjob offer, and thus of the labor certification, would be in the national interest. We dismissed a subsequent appeal, concluding that the Petitioner had not established that the proposed endeavor has national importance, reserving other eligibility criteria issues. The matter is before us again on a combined motion to reopen and a motion to reconsider.
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the combined motion.
Law
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R §103.5(a)(2). Wedonotrequiretheevidenceofa"newfact"tohavebeenpreviouslyunavailableor undiscoverable. Instead, "new facts" are facts that are relevant to the issue(s) raised on motion and that have not been previously submitted in the proceeding, which includes the original application. Reasserting previously stated facts or resubmitting previously provided evidence does not constitute "new facts."
A motion to reconsider must establish that our decision was based on an incorrect application of law or policy and that the decision was incorrect based on the evidence in the record ofproceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). We do not consider new facts or evidence in a motion to reconsider.
Analysis
As noted above, although we found that the proposed endeavor has substantial merit, we found that the record did not establish that the proposed endeavor has national importance, as required by the first prong ofMatter ofDhanasar, 26 I&N Dec. 884 (AAO 2016).1 Despite filing a combined motion to reopen and motion to reconsider, the Petitioner does not state a new fact, nor does he support such a fact with documentary evidence, material to the issue ofwhether theproposedendeavorhasnationalimportance. Seeid.;seealso8C.F.R.§103.5(a)(2). Instead,he asserts on motion, "through the evidence of record, the [Petitioner] has demonstrated under the preponderance of evidence standard, that [he is eligible for a national interest waiver]." Furthermore, the extent of the motion filing is the following: 1) the filing fee; 2) a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative; 3) Form I-290B, Notice of Appeal or Motion; 4) a copy of the Director's request for evidence; 5) a copy of the Director's decision; 6) a copy ofour decision dismissing the appeal; and 7) the brief in support of the combined motion. None of these documents are documentary evidence supporting a new fact.
Because the motion to reopen does not state a new fact, suppmied by documentary evidence, we will dismiss the motion to reopen. See8 C.F.R. § 103.5(a)(2), (a)(4).
Turning to the motion to reconsider, the Petitioner identifies several laws or policies that he asserts we misapplied. The Petitioner asserts that we misapplied the preponderance of evidence standard. The Petitioner also asserts that we misapplied 8 C.F.R. § 103.2(b)(8). The Petitioner further asserts that we misapplied Dhanasar, 26 I&N Dec. 884.
Except where a different standard is specified by law, a petitioner must prove eligibility for the requested immigration benefit by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Under the preponderance ofthe evidence standard, the evidence must demonstrate that the petitioner's claim is "probably true." Id. at 376. We will examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the totality of the evidence, to determine whether the fact to be proven is probably true.
If a petitioner submits relevant, probative, and credible evidence that leads us to believe that the claim is"morelikelythannot"or"probably"true,ithassatisfiedthestandardofproof. Statedanotherway, a petitioner must establish that there is greater than a fifty percent chance that a claim is true.
In determining national importance, the relevant question is not the importance ofthe industry, field, or profession in which an individual will work; instead, to assess national importance, we focus on the "specific endeavor that the foreign national proposes to undertake." See Dhanasar, 26 I&N Dec. at 889. Dhanasarprovided examples of endeavors that may have national importance, as required by the first prong, having "national or even global implications within a particular field, such as those resulting from ce1iain improved manufacturing processes or medical advances" and endeavors that have broader implications, such as "significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area." Id. at 889-90.
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthe three prongs. p. 3 The Petitioner asserts, "through the evidence of record, the [Petitioner] has demonstrated under the preponderance of the evidence standard ... [he has] highly qualified experience and expertise [and] has made significant contributions to the field," he "has demonstrated his record of success in related efforts . . . and, as such, he is well positioned to advance his proposed endeavor," and that "on balance, it would be beneficial for the United States to waive the requirements ofa job offer and thus ofa labor certification." The Petitioner's record ofsuccess in the past is material to the secondDhanasarprong, whether he is well positioned to advance the proposed endeavor, notthe firstDhanasarprong, whether theproposedendeavorrisestothelevelofnationalimportance. SeeDhanasar,26I&NDec.at888- 91. Similarly, the contributions the Petitioner "has made" to the field in the past is material to the second, not the first, Dhansar prong. See id. In tum, whether waiving the requirements of a job offer would be beneficial to the United States is material to the third Dhanasar prong. See id. Other than providing generalized statements that relate to the second and third Dhanasar prongs, the Petitioner does not identify specific evidence of record, either individually or in the aggregate, that establishes under the preponderance of evidence standard that the proposed endeavor will have broader implications, such as "significant potential to employ U.S. workers or has other substantial positive economic effects, particularly in an economically depressed area."Job creation or economic claims unsupported See id. at 889-90; see also Matter of Chawathe, 25 I&N Dec. at 375-76. Accordingly, the Petitioner does not establish that we misapplied the preponderance of evidence standard by dismissing the appeal.
Next, the Petitioner asserts, "if there is insufficient evidence to meet the [preponderance of evidence] standard, examiners should resolve their doubts by requesting clarifying evidence to afford the Petitioner the opportunity to explain and document its eligibility," citing 8 e.F.R. § 103 .2(b)(8). The Petitioner'srelianceon8e.F.R.§I03.2(b)(8)ismisplaced. Theregulationstates:
Ifall required initial evidence has been submittedbut the evidence submitted does not establish eligibility. [U.S. Citizenship and Immigration Services (USCJS)] may: deny the benefit requestfor ineligibility; request more information or evidence from the applicant or petitioner, to be submitted within a specified period oftime as determined by users; or notify the applicant or petitioner ofits intent to deny the benefit request and the basis for the proposed denial, and require that the applicant or petitioner submit a response within a specified period of time as determined by users.
8 e.F.R. § 103.2(b)(8)(iii) (emphasis added). Although users may request more information or evidence from a petitioner, it is not required to do so. Id. On the contrary, users may also deny the benefit request for ineligibility. Id. In the alternative, if all required evidence is not submitted with thebenefitrequestoritdoesnotestablisheligibility,users initsdiscretionmaydenythebenefit request. 8 e.F.R. § I 03 .2(b)(8)(ii). It is the Petitioner's burden to establish eligibility for the requested benefit. Section291oftheAct,8U.S.e.§1361;seealso8e.F.R.§I03.2(b)(1)(requiringpetitioners to establish eligibility for the requested benefit at the time of filing the benefit request and to maintain eligibility through adjudication). Where, as here, the evidence ofrecord indicated that a basic element of eligibility had not been met, it was appropriate for users to deny the petition without a request for evidence. Accordingly,thePetitionerdoesnotestablishthatwemisapplied8e.F.R.§I03.2(b)(8)by dismissing the appeal.
Next, the Petitioner asserts that we misapplied Dhanasar, specifically that we "contradict[ed] the opinion issued in Dhanasar that the AAO emphasized on the geographic location that limits the Petitionertoshowevidenceofcreatingjobsandrevenuesinaneconomicallydepressedarea."Inconsistencies in the record The Petitioner asserts that Dhanasar "does not require a petitioner to show substantial economic impact onaneconomicallydepressedarea." ThePetitionermischaracterizesourdecision,inwhichwestated:
In addition, although the Petitioner asserts that [his company] will employ U.S. workers, he has not offered sufficient evidence that the area where they will operate is economically depressed, that he would employ a significant population of workers in that area, or that his endeavor would offer the region or its population a substantial economic benefit through employment levels or business activity.
Our decision did not require the Petitioner to show substantial economic impact on an economically depressedarea. Instead,itobservedthatinadditiontootherreasonsdiscussedtherein,thePetitioner did not establish that the proposed endeavor has significant potential to employ U.S. workers or has other substantial positive economic effects. See Dhanasar, 26 I&N Dec. at 889-90. Accordingly, the Petitioner has not established that we misappliedDhanasar by dismissing the appeal.
In summation, the Petitioner has not established on motion that we misapplied a law or policy and that our decision was incorrect based on the evidence in the record of proceedings at the time of the decision; therefore, we will dismiss the motion to reconsider. See 8 C.F.R. § 103.5(a)(3), (4).
Because the Petitioner has not satisfied the first Dhanasar prong on motion, we need not address whether he has satisfied the second and third Dhanasar prongs, and we hereby reserve these issues. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision ofwhich is unnecessary to the results they reach"); see also Matter of L-A-C-, 26 I&N Dec. 516, 526 n. 7 (BIA 2015) (declining to reach alternative issues on appeal where an applicant is otherwise ineligible).
Conclusion
The Petitioner has not submitted new facts and evidence sufficient to establish that he is eligible for, or otherwise merits, a national interest waiver as a matter of discretion. See 8 C.F.R. § 103 .5(a)(2). In addition, the Petitioner has not established that our previous decision was based on an incorrect application of law or policy and that it was incorrect based on the evidence then before us. See 8 C.F.R. § 103.5(a)(3).
ORDER: The motion to reopen is dismissed.
FURTHER ORDER: The motion to reconsider is dismissed.