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RemandedNational Interest Waiver · Motion to reopen & reconsider

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Other / unclear · decided 2022-10-19 · TSC · OCT192022_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
    The Director's denial rested on this
    The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not establish that he is a member of the professions holding an advanced degree or that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. p. 1
  • 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

Upon de nova review, we will withdraw the Director's decision and remand the matter for issuance of a new decision. See in text

What the AAO decided

  • As a result, we withdraw the Director's decision and remand the matter for a new decision on the merits addressing whether the Petitioner's combined motion satisfies the requirements of a motion to reopen and a motion to reconsider at 8 C.F.R. § 103.5(a)(2) and (3). See in text
  • ORDER: The decision of the Director is withdrawn. See in text
  • The matter is remanded for the entry of a new decision consistent with the foregoing analysis. 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 (4)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · In Re: 22678653 · Appeal of Texas Service Center Decision · Non-Precedent Decision of the Administrative Appeals Office · Date: OCT. 19, 2022 · Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National Interest Waiver)

    The Petitioner 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 Texas Service Center denied the petition, concluding that the Petitioner did not establish that he is a member of the professions holding an advanced degree or that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. The Director dismissed the subsequent combined motion to reopen and reconsider solely because it was not accompanied by a statement about whether the unfavorable decision has been the subject of any judicial proceeding. See 8 C.F.R. § 103.5(a)(l)(iii)(C). The matter is now before us on appeal.

    The Petitioner has the burden to establish eligibility for the requested benefit by a preponderance of the evidence. See Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofChawathe, 25 I&N Dec. 369, 375 (AAO 2010). Upon de nova review, we will withdraw the Director's decision and remand the matter for issuance of a new decision.

    The required statement on judicial proceedings under 8 C.F.R. § 103.5(a)(l)(iii)(C) is a procedural rule that helps U.S. Citizenship and Immigration Services identify those cases involving judicial proceedings so they can be held in abeyance pending the outcome of litigation involving the originally filed petition. See, e.g. Memorandum from Richard E. Norton, Assoc. Comm'r for Examinations, Immigration and Naturalization Service, Adjudication ofPetitions and Applications which are in Litigation or Pending Appeal (Feb. 8, 1989).

    On appeal, the Petitioner's submission includes a statement that the Director's original decision denying his petition is not the subject of any judicial proceeding, the sole ground for dismissal. As a result, we withdraw the Director's decision and remand the matter for a new decision on the merits addressing whether the Petitioner's combined motion satisfies the requirements of a motion to reopen and a motion to reconsider at 8 C.F.R. § 103.5(a)(2) and (3).

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