U.S.

Department of Homeland Security

U.S. Citizenship and Immigration Services
Office of Administrative Appeals
(b)(6) 20 Massachusetts Ave., N.W., MS 2090
Washington, DC 20529-2090

U.S. Citizenship
and Immigration
Services

DATE: DEC 3 0 2013 Office: TEXAS SERVICE CENTER FILE:

INRE: Petitioner:
Beneficiary:

PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b )(2) of the Immigration
and Nationality Act, 8 U.S .C. § 1153(b)(2)

ON BEHALF OF PETITIONER:

INSTRUCTIONS :

Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case.

This is a non-precedent decision . The AAO does not announce new constructions of Jaw nor establish agency
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to
your case or if you seek to present new facts for consideration, you may file a motion to recons ider or a
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B)
within 33 days of the date of this decision. Please review the Form I-290B instructions at
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements.
See also 8 C.P.R. § 103.5. Do not file a motion directly with the AAO.

Thank you,

~~
Ron Rosenberg
Chief, Administrative Appeals Office

www.uscis.gov
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DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The
petitioner appealed the matter to the Administrative Appeals Office (AAO). The AAO dismissed the
petitioner's appeal. The matter is now before the AAO on motion to reconsider. The motion will be
dismissed, the previous decision of the AAO will be affirmed, and the petition will remain denied.

The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act
(the Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the sciences, the arts, or
business. The petitioner seeks employment as an early childhood multicultural education
administrator. The petitioner asserts that an exemption from the requirement of a job offer, and thus
of a labor certification, is in the national interest of the United States. The director found that the
petitioner had not established that she qualifies for the classification sought, and that the petitioner had
not established that an exemption from the requirement of a job offer would be in the national interest of
the United States. The AAO upheld the director's findings on appeal.

A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent
precedent decisions to establish that the decision was based on an incorrect application of law or
U.S. Citizenship and Immigration (USCIS) policy. A motion to reconsider a decision on an
application or petition must, when filed, also establish that the decision was incorrect based on the
evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion to reconsider
contests the correctness of the original decision based on the previous factual record, as opposed to a
motion to reopen which seeks a new hearing based on new or previously unavailable evidence. See
Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). A motion that does not meet applicable
requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4).

A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the
"additional legal arguments" that may be raised in a motion to reconsider should flow from new law
or a de novo legal determination reached in its decision that could not have been addressed by the
party. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Further, a motion to reconsider is not a
process by which a party may submit, in essence, the same brief presented on appeal and seek
reconsideration by generally alleging error in the prior decision. !d. Instead, the moving party must
specify the factual and legal issues raised on appeal that were decided in error or overlooked in the
initial decision or must show how a change in law materially affects the prior decision. !d. at 60.

EXCEPTIONAL ABILITY

With regard to the issue of whether the petitioner qualifies as an alien of exceptional ability in the
sciences, arts, or business, the AAO's July 18, 2013 decision dismissing the appeal stated:

In denying the petition on April 1, 2013, the director stated: "The evidence does not show
that the beneficiary qualifies for the requested classification as a member of the professions
holding an advanced degree or an alien of exceptional ability."
1 (b)(6)
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1
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NON-PRECEDENT DECISION
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I
1
l
The petitiOner, on appeal, does not contest or even acknowledge this finding. Rather,
counsel's appellate brief deals exclusively with the other stated ground for denial, concerning
the national interest waiver. When an appellant fails to offer argument on an issue, that issue
1 is abandoned. Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n.2. (11th Cir. 2005), citing
l
I
United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998). See also Hristov v.
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *1 , *9 (E.D.N.Y. Sept. 30, 2011)
l (plaintiff abandoned his claims as he failed to raise them on appeal to the AAO). Therefore,
the petitioner has effectively abandoned her claim of exceptional ability.
1
l With no finding that she qualifies for the underlying immigrant classification, the petitioner
l cannot qualify for the national interest waiver.

On motion, counsel states: "Petitioner did not abandon her claim of exceptional ability. On page one of
the appeal brief, paragraph 2, petitioner restated her qualifications as an alien of exceptional ability, as
listed in 8 C.P.R. § 204.5(k)(3)(ii) .... "

The paragraph in the appeal brief identified by counsel stated:

[The petitioner] requested an NIW [national interest waiver] based on her exceptional
background and experience as an Early Childhood Educator who has been active in bi-
cultural early child care and education both in her native Colombia, and in the United States
for more than a quarter century, implementing and managing educational and community
development projects, writing and publishing newspaper and magazine articles, giving talks
and presentations at national child care conferences, and receiving media coverage for her
ability to meet and respond to the particular needs and preferences of people of Hispanic
background in the United States.

While counsel commented on the petitioner's "exceptional background" and activities in the field in
the context of her national interest waiver claim, the preceding paragraph did not specifically
challenge the director's finding that the petitioner had not qualified as "an alien of exceptional
ability," or point to specific documentation submitted for at least three of the categories of evidence
at 8 C.P.R. § 204.5(k)(3)(ii) that supports a finding of eligibility. A passing reference without
substantive arguments is insufficient to raise that ground on appeal. Desravines v. U.S. Atty. Gen.,
343 Fed.Appx. 433, 435 (11th Cir. 2009).

The regulation at 8 C.P.R. § 204.5(k)(3)(ii) provides that a petitioner seeking classification as an

alien of exceptional ability must submit evidence that qualifies under at least three of the following
categories of evidence:

(A) An official academic record showing that the alien has a degree, diploma, certificate, or
similar award from a college, university, school, or other institution of learning relating to the
area of exceptional ability;
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NON-PRECEDENT DECISION
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(B) Evidence in the form of letter(s) from current or former employer(s) showing that the
alien has at least ten years of full-time experience in the occupation for which he or she is
being sought;

(C) A license to practice the profession or certification for a particular profession or

occupation;

(D) Evidence that the alien has commanded a salary, or other remuneration for services,
which demonstrates exceptional ability;

(E) Evidence of membership in professional associations; or

(F) Evidence of recognition for achievements and significant contributions to the industry or
field by peers, governmental entities, or professional or business organizations.

As the paragraph identified by counsel did not specify which of the above three categories of evidence
that the petitioner claimed to meet, the petitioner has not overcome the AAO's determination that she
abandoned her claim of exceptional ability. The petitioner has not established that the AAO's
determination was based on an incorrect application of law or users policy, or that it was incorrect
based on a review of the arguments and documents presented on appeal.

NATIONAL INTEREST WAIVER

In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998)
(NYSDOI), has set forth several factors which must be considered when evaluating a request for a
national interest waiver. First, a petitioner must establish that she seeks employment in an area of
substantial intrinsic merit. /d. at 217. Next, a petitioner must establish that the proposed benefit will be
national in scope. /d. Finally, the petitioner seeking the waiver must establish that she will serve the
national interest to a substantially greater degree than would an available U.S. worker having the same
minimum qualifications. /d. at 217-18. ·

The AAO previously found that the petitioner's work is in an area of intrinsic merit and that the
proposed benefits of her work would be national in scope. However, the AAO determined that the
petitioner had failed to establish that she fulfilled the third eligibility factor set forth in NYSDOT.

In addressing reference letters submitted by the petitioner that contained "similar, and at times,
identical" language, the AAO stated:

These similarities across the various letters suggest that the language in the letters is not the
authors' own. Cf Surinder Singh v. Boatd of Immigration Appeals, 438 F.3d 145, 148 (2d
Cir. 2006) (upholding an immigration judge's adverse credibility determination in asylum
proceedings based in part on the similarity of some of the affidavits); Mei Chai Ye v. U.S.
Dept. of Justice, 489 F.3d 517, 519 (2d Cir. 2007) (concluding that an immigration judge
 (b)(6)

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may reasonably infer that when an asylum applicant submits strikingly similar affidavits, the
applicant is the common source).

Because the letters appear to have been drafted by someone other than the purported authors,
the letters possess little credibility or probative value. In evaluating the evidence, the truth is
to be determined not by the quantity of evidence alone but by its quality. See Matter of
Chawathe, 25 r&N Dec. 369, 376 (AAO 2010).

* * *
users may, in its discretion, use as advisory opinions statements submitted as expert
testimony. See Matter of Caron International, 19 r&N Dec. 791, 795 (Comm'r 1988).
However, USers is ultimately responsible for making the final determination regarding an
alien's eligibility for the benefit sought. !d. Based on the extensive similarities between the
above letters, users may accord them less weight.

In response to the above findings, counsel states:

AAO questioned the probative value of some of petitioner's recommendation letters because
they contained similar language. As a courtesy, petitioner did provide draft sample letters to
the professionals who supported her NIW petition. Each writer was free to edit, add to, or
delete any part of the sample letter, and each writer willingly signed the letter as indicative of
his or her opinion of petitioner's exceptional abilities. An equally valid observation can be
made that repetition of the same language serves to emphasize petitioner's exceptional
abilities.

Counsel asserts above that "repetition of the same language serves to emphasize petitioner's
exceptional abilities," but her argument is not supported by any pertinent precedent decisions to
establish that the AAO's analysis of the reference letters was based on an incorrect application of
law or USCIS policy. With regard to the identical language in the recommendation letters being
accorded less evidentiary weight, the AAO's decision cited to multiple precedent decisions in
support of its analysis of the letters. See Cf Surinder Singh v. Board of Immigration Appeals, 438
F.3d at 145; Mei Chai Ye v. U.S. Dept. of Justice, 489 F.3d at 519; Matter of Caron International, 19
I&N Dec. at 795.

Counsel states that the "AAO itself used virtually identical language to that used in the USCIS denial
in several sections of its decision." Counsel points to "page 6, paragraphs 6 and 7 of the USCIS
denial" as being "indistinguishable" from language in the AAO's appellate decision, but there are no
paragraphs 6 and 7 on page 6 of the director's decision denying the petition. Regardless, the similar
language in the decisions of the director and the AAO pertains to the statute, legislative history,
regulations, public rulemaking process, and precedent decision NYSDOT. There is no error in
repeating the legal bases for a decision on an immigrant visa petition. In contrast, the identical
language in the petitioner's recommendations letters was submitted as evidence from different
witnesses who attested to her qualifications and eligibility for the classification sought.
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In addition to the issue of identical wording appearing in multiple recommendation letters, the AAO
stated:

[Tlhe letters ... did not show how the petitioner's work has had a significant effect outside
of With respect to " being recognized as a model," the
record does not establish that any other jurisdiction has actually adopted that model, or that
such adoption has led to significant improvements in the problems that the petitioner's work
seeks to address. . . . Accordingly, the content of the letters is insufficient to establish the
petitioner's eligibility for the immigration benefit sought.

The arguments presented by counsel on motion do not specifically contest the AAO's above analysis
regarding the content of the recommendation letters and their failure to demonstrate the petitioner's
influence on the field as a whole. Furthermore, as previously stated, a motion to reconsider must
state the reasons for reconsideration and be supported by any pertinent precedent decisions to
establish that the decision was based on an incorrect application of law or US CIS policy. Counsel's
arguments are unsupported by any precedent decisions or other legal authority to overcome or
undermine the AAO's reliance on Cf Surinder Singh v. Board of Immigration Appeals, Mei Chai Ye
v. U.S. Dept. of Justice, and Matter of Caron International in evaluating the recommendation letters.
Accordingly, counsel has not presented sufficient grounds for reconsideration.

With regard to the petitioner's involvement with the

, the AAO stated:

Materials in the record show that the petitioner gave presentations at local or statewide
conferences in and at the Annual Conference of the

* * *
The petitioner's presentations at conferences outside of her own local area provides a means
of disseminating her work, thereby lending it national scope (provided the petitioner intends
to continue making such presentations, and provided national organizations continue to
provide her that opportunity). Such dissemination, however, does not necessarily establish
the impact and influence of the petitioner's work.

* * *
Counsel states: "A further mark of [the petitioner's] national relevance is her active
membership in the and her yearly
educational presentations at conventions since 2006" (emphasis in original).
Membership in a national organization does not lend national significance to any given
member. With respect to her conference presentations, these are not ·~a further mark" of her
impact, because counsel had already stated that the petitioner "has lectured in California,
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Maryland, New Mexico and Utah." The record shows that many of these lectures were the
petitioner's presentations at conventions. Citing the same evidence again, m a
different context, does not constitute "further" support for the petition.

In response to the above fmdings, counsel states:

AAO objected to petitioner's use of the same evidence to show membership in a national
organization and national impact through lectures given for the same organization. Note that
the USCIS Adjudicator's Field Manual, Chapter 22.2(a), states:

A list of the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii) (is) applicable to this
immigrant classification. Note that in some cases, evidence relevant to one criterion may
be relevant to other criteria set forth in these provisions.

The AAO, however, was not commenting on the petitioner's membership and conference
presentations as evidence of her eligibility for classification as an alien of exceptional ability
pursuant to the regulatory categories of evidence at 8 C.F.R. § 204.5(k)(3)(ii). Instead, the AAO was
addressing the third prong of the NYSDOT test which requires the petitioner to establish that she will
serve the national interest to a substantially greater degree than would an available U.S. worker having
the same minimum qualifications. The AAO indicated that the petitioner's presentations had
already been addressed earlier in the appellate decision, and that her membership in that organization
was not sufficient to show any further impact or influence from her work. In order to establish
eligibility for the national interest waiver, the petitioner must demonstrate a past history of
achievement with some degree of influence on the field as a whole. See NYSDOT, 22 I&N Dec. at
219, n. 6.

Counsel further states:

Few, if any multicultural early childhood educators have qualifications comparable to

petitioner's - a college degree and certificates for additional post-college training in child
care; experience far in excess of ten years; national, professional organization presentations;
recognition by peers, former employers and government officials; media coverage; and
intimate know ledge of Latina culture and language.

* * *
Petitioner's uncommon qualifications and the fact that in America only 4.9% of Latina
women and 3.2% of Latina men obtain a bachelor's degree in any discipline, (National
Center for Education Statistics. Table 297, Digest of Education Statistics 2010 (2011)), show
that petitioner's degree of expertise is significantly above that ordinarily encountered in the
field of early bi-lingual childhood education.

Counsel assets above that "few" multicultural early childhood educators have qualifications
comparable to those of the petitioner. As the alien employment certification process was designed to
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address the issue of worker shortages, a shortage of qualified workers in a given field does not establish
eligibility for the national interest waiver. The issue of whether similarly-trained workers are
available in the U.S. is an issue under the jurisdiction of the Department of Labor. NYSDOT, 22
I&N Dec. at 221. Moreover, any objective qualifications which are necessary for the performance of
the occupation can be articulated in an application for alien employment certification. /d. at 220-221.
In addition, counsel asserts that the "petitioner's degree of expertise is significantly above that
ordinarily encountered in the field of early bi-lingual childhood education." However, by statute,
aliens of exceptional ability are generally subject to the job offer/labor certification requirement;
they are not exempt by virtue of their exceptional ability. Therefore, whether a given individual
seeks classification as an alien of exceptional ability, or as a member of the professions holding an
advanced degree, that individual cannot qualify for a national interest waiver just by demonstrating a
degree of expertise significantly above that ordinarily encountered in her field of expertise.

:\ .. The petitioner has not established that her past record of achievement is at a level that would justify ·
a waiver of the job offer requirement which, by law, normally attaches to the visa classification
sought by the petitioner. The petitioner need not demonstrate notoriety on the scale of national
acclaim, but the national interest waiver contemplates that her influence be national in scope. /d. at
217, n.3. More specifically, the petitioner "must clearly present a significant benefit to the field of
endeavor." /d. at 218. See also id. at 219, n.6 (the alien must have "a past history of demonstrable
achievement with some degree of influence on the field as a whole").

The petitioner has failed to support her motion with any legal &rgument, precedent decisions, or
other comparable evidence to establish that the AAO's July 18, 2013 decision was based on an
incorrect application of law or USCIS policy. In addition, the petitioner has not established that the
AAO's previous decision was incorrect based on the evidence of record at the time of the decision.
On the basis of the documentation submitted, the petitioner has not established that a waiver of the
requirement of ~m approved labor.certification will be in the national interest of the United States.

The regulation at 8 C.P.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable
requirements shall be dismissed." Accordingly, the motion will be dismissed, and the previous
decisions of the director and the AAO will not be disturbed.

In visa 'petition proceedings, it is the petitioner's burden to establish eligibility for the immigration
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128
(BIA 2013). Here, that burden has not been met.

ORDER: The motion to reconsider is dismissed, the AAO's July 18, 2013 decision is affirmed,
and the petition remains denied.