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RemandedNational Interest Waiver · Motion to reopen & reconsider

Chemist and materials scientist

Physical sciences & math · decided 2024-09-03 · NSC · SEP032024_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
    The Director's denial rested on this
    The Director of the Nebraska Service Center denied the petition, concluding that the record did not establish that the proposed endeavor was of national importance, the Petitioner is well positioned to advance the endeavor, or that it would be beneficial to waive the requirements of a job offer. p. 1
  • 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 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  • ORDER: The Director's decision is withdrawn.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
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)Matter of X citation
    Decision header
    U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: SEP. 03, 2024 · In Re: 33303850 · Appeal of Nebraska Service Center Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

    The Petitioner, a chemist and materials scientist, seeks employment-based second preference (EB-2) immigrant classification as either a member of the professions holding an advanced degree or an individual of exceptional ability, 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. § ll 53(b )(2).

    The Director of the Nebraska Service Center denied the petition, concluding that the record did not establish that the proposed endeavor was of national importance, the Petitioner is well positioned to advance the endeavor, or that it would be beneficial to waive the requirements of a job offer. The Petitioner then filed a combined motion to reopen and reconsider, which the Director subsequently dismissed. The matter is now before us on appeal pursuant to 8 C.F .R. § 103.3.

    The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). We review the questions in this matter de novo. Matter of Christo 's, Inc., 26 I&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.

    A motion to reopen is based on new facts that are supported by documentary evidence. 8 C.F .R. § 103.5(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).

    Upon review, we conclude the Director' s decision contained sufficient errors to warrant a remand. For example, the Director found that "the motion satisfied the regulatory requirements for a filing a motion to reopen." Yet the motion was ultimately dismissed. If a motion to reopen is granted, the proceeding shall be reopened. 8 C.F.R. § 103.5(a)(4). As such, it is unclear from this language if the Director intended to grant or deny the motion to reopen. On remand, the Director should clarify the issue.

    Additionally, the decision appears to have conflated the requirements of a motion to reopen and a motion to reconsider as the analysis of the motion to reconsider assessed the new evidence submitted with the motion to reopen. A motion to reopen is based on new facts supported by evidence, while motion to reconsider must establish the Director's decision was incorrect based on the evidence in the record at the time ofthe decision. 8 CFR 103.S(a) (emphasis added). Therefore, evidence submitted with the motion to reopen, should not have been reviewed in connection to the motion to reconsider. We are remanding the case to the Director for further review and to provide an accurate and sufficient explanation of the grounds of denial so that the Petitioner can more fully understand the Director's concerns.

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