The Petitioner seeks employment-based second preference (EB-2) immigrant classification, as well as a national interest waiver of the job offer requirement attached to this 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 record did not establish the Petitioner's eligibility for EB-2 immigrant classification or the requested national interest waiver. The Director subsequently dismissed a combined motion to reopen and motion to reconsider.
The Petitioner now appeals the Director's dismissal of the combined motions pursuant to 8 C.F.R. §§ 103.3 and 103.5(a)(6).
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter afChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter a/Christa's, Inc., 26 I&N Dec. 537,537 n.2 (AAO 2015). Upon de novo review, we will dismiss the appeal.
As a preliminary matter, we emphasize that the appeal before us relates to the Director's April 2024 dismissal of the Petitioner's combined motion to reopen and motion to reconsider, not the September 2023 denial of the underlying petition. Therefore, the question before us is whether the Director erred in dismissing the combined motion.
In the September 2023 decision, the Director concluded that the Petitioner was not eligible for the underlying EB-2 immigrant classification as an advanced degree professional I because she established only two years, three months, and nine days of post-baccalaureate experience in the specialty.
Director determined she did not qualify as an individual of exceptional ability3 because she satisfied only two of the six initial regulatory criteria, 8 C.F.R. §§ 204.5(k)(3)(ii)(A) and (C), relating to attainment of a degree, diploma, certificate, or similar award and a license or certification for a profession or occupation4Exceptional ability not established
Regarding the national interest waiver5Tried to change the endeavor after filing
, the Director determined that the Petitioner made a material change to her proposed endeavor in response to the request for evidence (RFE). The Director, citing to Matter ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998), concluded that she was attempting "to make an apparently deficient petition conform to Service requirements" and explained that per Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971)," [a] petitioner must establish eligibility at the time of filing" and that "a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts." 6Not eligible at the time of filing
A motion to reopen must state new facts and be supported by affidavits or other documentary evidence. 7 8 C.F.R. § l 03.5(a)(2). A motion to reconsider must establish that the 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). U.S. Citizenship and Immigration Services (USCIS) may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit.
On motion, the Petitioner submitted primarily the same evidence she previously provided, but did supplement the record with an additional letter of recommendation as well as documents relating to the registration of her company. She also offered the same or similar arguments asserting her eligibility for the underlying classification and national interest waiver, but did not address, for example, the Director's conclusion that she had materially changed her proposed endeavor in response to the RFE. Similarly, the Petitioner did not address the Director's specific conclusions regarding the 3 Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation that satisfies at least three of six categories of evidence. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting at least three criteria, however, does not, in and of itself: establish eligibility for this classification. If a petitioner does so, we will then conduct a final merits determination to decide whether the evidence in its totality shows that they are recognized as having the requisite degree of expertise and will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. Section 203(b)(2)(A) of the Act.
insufficient evidence establishing her experience, or otherwise explain how the Director misapplied law or policy in concluding that the Petitioner did not establish eligibility for the underlying classification. Accordingly, the Director dismissed the combined motion concluding that the Petitioner did not provide new facts or establish that the decision was based on an incorrect application oflaw or policy or incorrect based on the evidence in the record at the time ofthe decision.
On appeal, the Petitioner again resubmits the same evidence already in the record, along with newly issued experience letters documenting her experience within the field and continues to assert her eligibility for both the underlying EB-2 immigrant classification, as well as her eligibility for a national interest waiver. However, because the Petitioner was put on notice and given a reasonable opportunity to provide these letters before the Director, we will not consider them for the first time on appeal.Evidence submitted too late See 8 C.F.R. § 103.2(b)(ll) (requiring all requested evidence be submitted together at one time); Matter of Soriano, 19 T&N Dec. 764, 766 (BIA 1988) (declining to consider new evidence submitted on appeal because "the petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the denial").
The reason for filing an appeal is to provide an affected party with the means to remedy what they perceive as an erroneous conclusion oflaw or statement of fact. See 8 C.F.R. § 103.3(a)(l)(v). It is insufficient to broadly assert that the Director made an improper determination. Here, the Petitioner does not address the Director's conclusions in its April 2024 decision, nor does she accurately describe them. For example, the Petitioner states that the Director erred by not recognizing her satisfaction of the academic record criterion relating to her exceptional ability claim, and also erred by only considering three of the six initial evidentiary criteria. However, the record shows that in their initial decision denying the petition the Director acknowledged that the Petitioner satisfied the academic record criterion, and also addressed each of the Petitioner's claims under each qualifying criterion.
Additionally, in dismissing the combined motions, the Director explained why the new evidence submitted did not overcome their initial decision concluding that the Petitioner only met two of the six evidentiary criteria. And rather than identifying an erroneous conclusion of law or statement of fact in the decision dismissing the motions, the Petitioner continues to assert her eligibility for the national interest waiver based on her position as CEO for her consulting company. She again does not acknowledge, for example, the Director's determination that she materially changed her proposed endeavor, or otherwise overcome the Director's conclusion that the benefits from her proposed endeavor would be limited to her future customers, and not rise to the level of national importance contemplated in Dhanasar.Benefits limited to an employer or its clients
Because the Petitioner's combined motion to reopen and reconsider did not contain new facts supported by affidavits or other documentary evidence overcoming the Director's decision and establishing her eligibility, and she did not demonstrate that the Director erred as a matter of law or policy, the Director properly dismissed her combined motion to reopen and reconsider. See 8 C.F.R. § 103.5(a)(4).
For the reasons provided, the Petitioner has not established that the Director dismissed her motion in error or otherwise overcomes the basis for the prior decision. As such, we will not re-adjudicate the petition anew and, therefore, the underlying petition remains denied.
ORDER: The appeal is dismissed.