dismissed EB-2 NIW Case: Automotive Technician

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: FEB. 13, 2025 In Re: 36631866 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an automotive technician, seeks employment-based second preference (EB-2) 
immigrant classification as an individual of exceptional ability, and a national interest waiver of the 
job offer requirement attached to this classification. See section 203(b)(2) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
established eligibility as an individual of exceptional ability and that a waiver of the required job offer, 
and thus of the labor certification, would be in the national interest. We dismissed asubsequent appeal 
and two combined motions to reopen and reconsider. The matter is now before us on motion to 
reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. 
Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
A motion to reconsider must establish that our 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). Because the scope of a motion is limited to the 
prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. § 103.5(a)(l)(i), 
(ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested 
benefit. 
On motion, the Petitioner submits a brief and a copy of our prior decision. The Petitioner repeats his 
assertion from his prior combined motion to reopen and reconsider that we erred by not giving proper 
deference to the provided credential evaluation. However, and as explained in our prior decision, even 
if an evaluator determined his education and work experience to be the equivalent of a U.S. bachelor's 
degree, the Petitioner still has not met the plain language of the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A) which requires "[a]n official academic record showing that the alien has adegree, 
diploma, certificate, or similar award from a college, university, school, or other institution of learning 
relating to the area of exceptional ability." (emphasis added). Further, while we acknowledge the 
Petitioner's claim, through counsel, "that military training, including that provided by the Brazilian 
I is widely recognized as equivalent to formal academic education, meeting the educational I 
requirements for exceptional ability," counsel's unsubstantiated assertions do not constitute evidence. 
See, e.g., Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief, motion, or Notice 
of Appeal are not evidence and thus are not entitled to any evidentiary weight"). The Petitioner's 
contentions merely reargue facts and issues we have already considered in our previous decisions. See 
e.g., Matter of O-S-G-, 24 l&N Dec. 56, 58 (BIA 2006) ("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 Board decision"). 
The Petitioner also asserts that we erred in not conducting a final merits determination of exceptional 
ability because he believes he has established that he meets the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A), and has thereby met three of the six categories of evidence, as required under 
8 C.F.R. § 204.5(k)(3)(ii).1 As acknowledged by the Petitioner, demonstrating exceptional ability is 
a two-step process. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policy­
manual/volume-6-part-f-chapter-5 (explaining, as guidance, officers should use atwo-step analysis to 
evaluate the evidence submitted with the petition to demonstrate eligibility for exceptional ability 
classification). If a petitioner initially submits documentation that satisfies at least three of six 
categories of evidence at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F), we will then conduct a final merits 
determination to decide whether the evidence in its totality shows that they are recognized as having 
a degree of expertise significantly above that ordinarily encountered in the field. Because the 
Petitioner has not satisfied three of the six criteria, we did not err as a matter of law or policy. 
For the reasons above, the Petitioner has not established that our previous decision was based on an 
incorrect application of law or policy at the time we issued our decision. Therefore, the motion will 
be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
1 The Director determined that the Petitioner met the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(B) and (D). Our prior decisions 
confirmed that the Petitioner has not submitted sufficient evidence to meet any of the remaining criteria and the Petitioner 
does not contest our conclusions in the current motion. 
2