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MotionNational Interest Waiver · Motion to reconsider

Industrial and quality engineer

Engineering · decided 2024-09-19 · TSC · SEP192024_03B5203

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 the Petitioner had not established eligibility for the underlying EB-2 classification or that a waiver of the required job offer, and thus ofthe 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

The Director of the Texas Service Center denied the petition, concluding the Petitioner had not established eligibility for the underlying EB-2 classification or that a waiver of the required job offer, and thus ofthe labor certification, would be in the national interest. See in text

What the AAO decided

Main reasons given

  • Here, the Petitioner does not demonstrate how our appeal decision was based on an incorrect application of law or policy based on the evidence in the record. See in text
  • Because the Petitioner did not demonstrate that we erroneously applied law or policy in dismissing his appeal, the Petitioner has not established that his motion satisfies the requirements for a motion to reconsider under 8 C.F.R. § 103.5(a)(3). See in text
Read the full decision (3 pages)

Objections found (1)

Automated tags. Each shows the sentence that triggered it.

  • Again, simply disagreeing with our conclusions, without showing how we misapplied law or pointing to policy that contradicts our analysis of the evidence, is not sufficient to reconsider our decision. See in text (p. 3)

Full decision

OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

Highlighted: Outcome (4) AAO finding (2) Tagged objection (1)Matter of X citation
Decision header
U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: SEPT. 19, 2024 · In Re: 33566014 · Motion on Administrative Appeals Office Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

The Petitioner, an industrial and quality engineer, seeks employment-based second preference (EB-2) classification as either a member of the professions holding an advance degree or an individual of exceptional ability, 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 the Petitioner had not established eligibility for the underlying EB-2 classification or that a waiver of the required job offer, and thus ofthe labor certification, would be in the national interest. We dismissed a subsequent appeal. The matter is now before us on a motion to reconsider.

The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motion.

In our decision dismissing the appeal, which we incorporate here by reference, we agreed with the Director's overall determination that the Petitioner did not establish he qualifies for the underlying classification as either an advanced degree professional or an individual of exceptional ability. Regarding exceptional ability, we withdrew the Director's adverse determination relating to a license or certification to practice the profession at 8 C.F.R. § 204.5(k)(3)(ii)(C). And while the Petitioner now met three of the six criteria, we did not remand the matter to the Director to perform a final merits determination as he had not otherwise established eligibility for the waiver ofthe job offer requirement in the national interest.

With regard to the national interest waiver, we adopted and affirmed the Director's determination that the Petitioner did not establish his proposed endeavor satisfied the national importance element of the first prong under Matter ofDhanasar, 26 I&N Dec. 884, 889 (AAO 2016). Specifically, we noted that the Director thoroughly evaluated the Petitioner's claims relating to the first prong's national importance element. Further, we stated that, even if we did not adopt and affirm the Director's determination, we would have concluded that the Petitioner abandoned this issue on appeal when he p. 2 effectively reproduced the identical text he presented to the Director in response to the request for evidence (RFE).

A motion to reconsider must state the reasons for reconsideration; be supported by any pertinent precedent decision to establish that the decision was based on an incorrect application oflaw or policy; and establish that the decision was incorrect based on the evidence in the record at the time of the decision. 8 C.F.R. § 103.5(a)(3). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit.

On motion, the Petitioner requests "a thorough evaluation of his" exceptional ability claims since we withdrew the Director's determination regarding the licensure requirement and, therefore, "given the error in the evaluation of the submitted evidence and the importance of a comprehensive review, a reversal and remand for a thorough reevaluation of the petitioner's qualifications is justified." The Petitioner cites to Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985) and explains that the Supreme Court determined "if relevant factors have not been considered, the remedy should be to remand the case back to the agency for further investigation or a more detailed explanation." But, as noted above and as we explained in our prior decision, because a review of other dispositive issues addressed in the appeal reflected the Petitioner would remain ineligible even if we were to return the case to the Director, remanding would serve no purpose. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) ("courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach"); see also Matter ofL-A-C-, 26 I&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternate issues on appeal where an applicant is otherwise ineligible). In addition, the Petitioner asserts he identified a legal error committed by the Director, namely, "rejecting relevant, probative and credible evidence" and generally alleges the Director "failed to adequately assess evidence submitted to demonstrate the national importance of the proposed endeavor." But beyond the Petitioner's vague assertions, he does not demonstrate how. And the Petitioner's general disagreement with the Director's assessment of evidence does not establish that the Director "rejected" it.

The Petitioner further contends that "[r]ather than "abando[ning] the issue" by reproducing the text presented to the Director in response to the RFE, the Petitioner strategically reiterated his arguments to emphasize the Director's oversight in evaluating the evidence." The Petitioner, however, overlooks the fact that we adopted and affirmed the Director's reasoning as it related to the first prong of the Dhanasar analysis.

The Petitioner disagrees with our conclusions without demonstrating how we erred as a matter of law or policy. See Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (finding that a motion to reconsider is not a process by which the party may submit in essence, the same brief and seek reconsideration by generally alleging error in the prior decision). Furthermore, we reviewed the record and determined that the Director's decision considered and thoroughly analyzed the evidence and claims concerning the impact of his proposed endeavor and correctly concluded the Petitioner had not established its national importance.

Here, the Petitioner does not demonstrate how our appeal decision was based on an incorrect application of law or policy based on the evidence in the record. As noted, our review is limited to reviewing our most recent decision, which in this case is our dismissal ofthe appeal, not the Director's denial. Again, simply disagreeing with our conclusions, without showing how we misapplied law or pointing to policy that contradicts our analysis of the evidence, is not sufficient to reconsider our decision.Inconsistencies in the record

Because the Petitioner did not demonstrate that we erroneously applied law or policy in dismissing his appeal, the Petitioner has not established that his motion satisfies the requirements for a motion to reconsider under 8 C.F.R. § 103.5(a)(3). Therefore, we will dismiss the motion.

ORDER: The motion to reconsider is dismissed.