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MotionNational Interest Waiver · Motion to reopen & reconsider

Electronics manufacturer's representative

Engineering · decided 2023-10-06 · NSC · OCT062023_01B5203

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
    The Director's denial rested on this
    See, e.g., In Re: 22146834, *3 n.3 (AAO July 28, 2022) ("We make no finding concerning the Beneficiary's qualifications.") Rather, both we and the Director found that the company's labor certification does not demonstrate the offered job's need for an advanced degree professional. p. 2
  • 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

Department ofLabor does not demonstrate the offered job's need for an advanced degree professional. See in text

What the AAO decided

  • Upon review, we will dismiss the motions. See in text
  • ORDER: The motion to reopen is dismissed. See in text
  • FURTHER ORDER: The motion to reconsider is dismissed. See in text

Main reasons given

  • Because the motion does not meet applicable requirements, we must dismiss it. 8 C.F.R. § 103.5(a)(4). See in text
  • The motion to reopen omits a required original labor certification signed by the Beneficiary and does not otherwise meet applicable requirements. See in text
  • The motion to reconsider does not demonstrate our misapplication of law or policy. See in text
Read the full decision (3 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) AAO finding (3)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: OCT. 6, 2023 · In Re: 28451679 Motions on Administrative Appeals Office Decision · Form 1-140, Immigrant Petition for Alien Workers (Advanced Degree)

    The Petitioner, an electronics manufacturer's representative, seeks to permanently employ the Beneficiary as a sales engineer. The company requests his classification under the employment-based, second-preference (EB-2) immigrant visa category as a member of the professions holding an "advanced degree" or its equivalent. See Immigration and Nationality Act (the Act) section 203(b )(2)(A), 8 U.S.C. § 1153(b )(2)(A). U.S. businesses may sponsor noncitizens for permanent residence in this category to work in jobs requiring at least bachelor's degrees followed by five years of progressive experience in applicable specialties. See 8 C.F.R. § 204.5(k)(2) ( defining the term "advanced degree").

    The Director of the Nebraska Service Center denied the petition, and we dismissed the Petitioner's following appeal and combined motions to reopen and reconsider. See In Re: 24834421 (AAO Feb. 7, 2023). We affumed the Director's conclusion that the accompanying certification from the U.S. Department ofLabor does not demonstrate the offered job's need for an advanced degree professional. We also found that, contrary to regulations, the labor certification is not an original certification signed by the Beneficiary.

    The matter returns to us on another round of combined motions to reopen and reconsider. The Petitioner bears the burden of demonstrating eligibility for the requested benefit by a preponderance of the evidence. Matter ofChawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motions.

    Law

    A motion to reopen must state new facts, supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). In contrast, a motion to reconsider must demonstrate that our prior decision misapplied law or U.S. Citizenship and Immigration Services (USCIS) policy based on the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). On motion, we can only review our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that meet these requirements and demonstrate eligibility for the requested benefit. See Matter ofCoelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring new evidence to have the potential to change a case's outcome).

    A. Motion to Reopen

    The Petitioner's motion to reopen lacks an original labor certification signed by the Beneficiary or other new evidence. See 20 C.F.R. § 656.17(a)(l) (stating that USCIS "will not process petitions unless they are supported by an original certified ETA Form 9089 that has been signed by the employer, alien, attorney and/or agent"). Thus, contrary to 8 C.F.R. § 103.5(a)(2), the motion does not state "new facts." Because the motion does not meet applicable requirements, we must dismiss it. 8 C.F.R. § 103.5(a)(4).

    B. Motion to Reconsider

    The Petitioner asserts that USCIS found the Beneficiary eligible as an advanced degree professional. The company contends that the "remaining issue" is whether he qualifies for a waiver of the EB-2 category's job-offer requirement and thus of a labor certification.

    Contrary to the Petitioner's contentions, however, neither we nor the Director made a finding regarding the Beneficiary's qualifications as an advanced degree professional. See, e.g., In Re: 22146834, *3 n.3 (AAO July 28, 2022) ("We make no finding concerning the Beneficiary's qualifications.") Rather, both we and the Director found that the company's labor certification does not demonstrate the offered job's need for an advanced degree professional. See 8 C.F.R. § 204.5(k)(l) ("The job offer portion of the individual labor certification ... must demonstrate that the job requires a professional holding an advanced degree or the equivalent.") Even ifthe Beneficiary qualifies as an advanced degree professional, the petition cannot be approved because the job-offer portion of the labor certification does not require an advanced degree professional.

    Also, the company's contentions refer to a national interest waiver. See section 203(b )(2)(B)(i) of the Act. As explained in our prior decision, the Petitioner marked box 1.d. in Part 2 of its Form I-140, Immigrant Petition for Alien Worker, indicating its request for the Beneficiary's classification as "[a] member of the professions holding an advanced degree ... (who is NOT seeking a National Interest Waiver (NIW)." ( emphasis in original). If the company sought a national interest waiver, it should have marked box 1.h. in Part 2 of its Form I-140 as "[a]n alien applying for an NIW."

    Because USCIS has already decided the petition under the marked visa category, we cannot now consider a request to change the classification. See USCIS, "Petition Filing and Processing Procedures for Form I-140," https://www.uscis.gov/forms/all-forms/petition-filing-and-processingprocedures-for-form-i-140-immigrant-petition-for-alien-workers ("We cannot change the visa category if we have already made a decision on your Form I-140.") We therefore will not consider the Beneficiary's eligibility for a national interest waiver.

    The Petitioner's remaining arguments reflect continued confusion about the requested immigrant visa category and the scope of these proceedings. The company contends that the Beneficiary's bachelor's degree and employment experience demonstrate that he is "well-positioned" to advance his proposed endeavor. But his positioning to advance a proposed endeavor is a requirement for a national interest waiver. See Matter ofDhanasar, 26 I&N Dec. 884, 890 (AAO 2016). As previously explained, the Petitioner did not request a national interest waiver on its Form 1-140, and USCIS policy prevents us from changing the classification after a decision's issuance.

    The Petitioner also argues that it has the ability to pay the offered job's proffered wage. But, although petitioners must demonstrate their abilities to pay proffered wages under 8 C.F.R. § 204.5(g)(2), neither we nor the Director faulted the company's filing on that basis. The Petitioner's ability to pay the proffered wage is therefore irrelevant in these appellate proceedings.

    Conclusion

    The motion to reopen omits a required original labor certification signed by the Beneficiary and does not otherwise meet applicable requirements. The motion to reconsider does not demonstrate our misapplication of law or policy.

    ORDER: The motion to reopen is dismissed.

    FURTHER ORDER: The motion to reconsider is dismissed.