dismissed EB-2 NIW Case: Finance

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: JAN. 15, 2025 In Re: 35853408 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner seeks employment-based second preference (EB-2) 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 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 did not 
establish his qualification for the underlying visa classification as an individual of exceptional ability, 
or that he merits a discretionary waiver of the job offer requirement in the national interest. We 
dismissed the Petitioner's subsequent appeal and two combined motions to reopen and to reconsider. 
The matter is now before us again on a third combined motion to reopen and reconsider. 8 C.F.R. 
§ 103.5. 
The Petitioner bears the burden of proof 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. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Reasserting previously stated facts or resubmitting previously provided evidence does 
not constitute "new facts." 
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). 
The scope of any motion is limited to "the prior decision" and "the latest decision in the proceeding." 
8 C.F.R. § 103.5(a)(l)(i), (ii). Thus, our analysis for these combined motions is limited to the 
following: (1) whether the Petitioner establishes that the dismissal of the previous combined motions 
was based on an incorrect application of law or policy; or (2) whether the Petitioner presents a new 
fact, supported by evidence, that shows proper cause to reopen our decision on the previous combined 
motions. We may grant motions that satisfy these requirements and demonstrate eligibility for the 
requested benefit. See Matter of Coelho, 20 l&N Dec. 464, 473 (BIA 1992) (requiring that new 
evidence have the potential to change the outcome). Motions for the reopening or reconsideration of 
immigration proceedings are disfavored for the same reasons as petitions for rehearing and motions 
for a new trial on the basis of newly discovered evidence. See INS v. Doherty, 502 U.S. 314, 323 
(1992) (citing INS v. Abudu, 485 U.S. 94 (1988)). A party seeking to reopen a proceeding bears a 
"heavy burden." See INS v. Abudu, 485 U.S. at 110. 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification, as either an advanced degree professional or an individual 
of exceptional ability in the sciences, arts, or business. Because this classification requires that the 
individual's services be sought by a U.S. employer, a separate showing is required to establish that a 
waiver of the job offer requirement is in the national interest. 
Exceptional ability means a degree of expertise significantly above that ordinarily encountered in the 
sciences, arts, or business. 8 C.F.R. § 204.5(k)(2). A petitioner must initially submit documentation 
that satisfies at least three of six 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; 
(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 renumeration 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. 
8 C.F.R. § 204.5(k)(3)(ii).1 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows that the 
petitioner is recognized as having a degree of expertise significantly above that ordinarily encountered 
1 If these types of evidence do not readily apply to the individual's occupation, a petitioner may submit comparable 
evidence to establish eligibility . 8 C.F.R. § 204.5(k)(3)(iii). 
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in the field. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review 
where the documentation is first counted and then, if fulfilling the required number of criteria, 
considered in the context of a final merits determination); see also Visinscaia v. Beers, 4 F. Supp. 3d 
126, 131-32 (D.D .C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. ANALYSIS 
The Petitioner proposes to work in the United States as a financial analyst. Specifically, he intends to 
work as a branch manager for a mortgage company in I I Florida. As noted above, the Director 
denied the approval of this petition . In our decision dismissing the appeal, we agreed with the 
Director 's decision that the Petitioner did not qualify for the underlying EB-2 classification as an 
individual of exceptional ability, finding he did not meet any of the six criteria under 8 C.F.R. § 
204.5(k)(3)(ii). 2 We dismissed the Petitioner 's two subsequent motions as they did not meet the 
applicable regulatory requirements. 8 C.F.R. § 103.5(a)(4). 
In our immediate prior motion, we concluded the Petitioner did not submit new facts supported by 
sufficient evidence to demonstrate his qualification as an individual of exceptional ability. We further 
determined that the Petitioner did not demonstrate our prior decision was based on an incorrect 
application of law or policy. We incorporate our prior decisions by reference and will repeat only 
certain facts and evidence as necessary to address the Petitioner's claims on motion . 
A. Motion to Reopen 
In his current motion brief, the Petitioner disagrees with our previous motion decision, contends his 
eligibility as an individual of exceptional ability has been met by a preponderance of the evidence, and 
provides "pertinent facts and new evid ence" to show his eligibility. However, the Petitioner's new 
evidence does not support new facts demonstrating his eligibility for the EB-2 classification . 
For the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C), the Petitioner submits a foreign language resolution 
from the ______ _,accompanied with an English translation to establish that his CPA-10 
certification from the Brazi I ian Association of Financial and Capital Market Entities (AN BI MA) is a 
certification for his occupation or profession. However, the English translation document does not 
include the required certification of competence. See 8 C.F.R. § 103.2(b)(3). Because the Petitioner 
did not submit a properly certified English language translation of the resolution, we cannot 
meaningfully determine whether the translated material is accurate and thus supports his claims in 
support of this criterion . 
Furthermore, we note points of concern in the English translation. For instance, the foreign language 
resolution has seven articles while the En lish translation has onl six articles, and the end of the 
foreign language resolution states as Presidente while the English 
translation states __________ ...., as President of the ______ Such 
incorrect transcriptions detract from the credibility of the English translation. 
2 We reserved our review of the Petitioner's eligibility for the national interest waiver. See INS v. Bagamasbad, 429 U.S. 
24, 25-26 (1976) (per curiam) (holding that agencies are not required to make "purely advisory findings" on issues that are 
unnecessary to the ultimate decision). 
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In addition, it is not clear that the Petitioner's claimed occupation of financial analyst performs the 
services indicated in the resolution and requires CPA-10 certification for such occupation. While the 
resolution from the I Jstates that the resolution "[p]]rovides for the certification of 
employees of financial institutions and other institutions authorized to operate by thel I 
I I Article 1 of the resolution sets limitations stating, "This Resolution provides for the 
certification of employees of financial institutions and other institutions authorized to operate by the 
______ who work in serving the institution's customers in the activities of distribution 
and mediation of securities, securities and derivatives." Further limitations on the application of the 
resolution are noted in its subsections. The Petitioner has not sufficiently demonstrated how his 
occupation of financial analyst corresponds to the description contained in the resolution from the 
,________ __, and requires certification for the occupation. 
Moreover, the resolution indicates it came into force on April 1, 2022, which is after the date of filing 
this petition in 2020, and after the Petitioner earned his CPA-10 certification in 2018. A petitioner 
must establish eligibility for the benefit it is seeking at the time the petition is filed. See 8 C.F.R. § 
103.2(b)(l). Evidence that the Petitioner's claimed occupation required certification two years after 
the filing of the petition cannot be used to establish eligibility for the visa classification. 
For the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), the Petitioner's motion brief indicates he is 
submitting new documents to support his claims he received remuneration that shows his exceptional 
ability. However, his motion does not include the new documents. 
The Petitioner contends that he received a monthly salary of approximately R$20,000, as indicated in 
the pay stubs included with his petition, while paylab.com indicates the average monthly salary for a 
bank technician in Brazil ranges from R$1,418 to R$5,292 and for a financial analyst in Brazil ranges 
from R$1,733 to R$6,692 per month. He also maintains that payscale.com indicates a financial analyst 
median yearly salary is R$44,000, which is only two months of the Petitioner's salary. In addition, he 
claims that payscale.com shows that top earners in the field have a yearly salary of R$210,000, while 
the Petitioner makes a minimum of R$240,000 per year. With respect to the Petitioner's claims about 
paylab.com and payscale.com, this motion and the record do not include evidence to support his 
claims. Counsel's unsubstantiated assertions do not constitute evidence. See, e.g., Matter of S-M-, 22 
I&N Dec. 49, 51 (BIA 1998) (stating that "statements in a brief, motion, or Notice of Appeal are not 
evidence and thus are not entitled to any evidentiary weight"). 
The Petitioner has not stated any new facts or submitted additional evidence to establish that we erred 
in dismissing our prior motions. Because the Petitioner has not established new facts that would 
warrant the reopening of the proceeding, we have no basis to reopen our prior decision. The motion 
to reopen will be dismissed. 8 C.F.R. § 103.5(a)(4). 
B. Motion to Reconsider 
The purpose of a motion to reconsider is to show error in the most recent prior decision. Here, the 
Petitioner's current motion to reconsider does not 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, as discussed below. 
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Our previous decisions correctly found the Petitioner's evidence did not demonstrate eligibility for the 
requested benefit and therefore, did not warrant reconsideration of our prior decision. The Petitioner 
cannot meet the requirements of a motion to reconsider by broadly disagreeing with our conclusions; 
instead, the motion must demonstrate how we erred as a matter of law or policy. See Matter of O-S­
G-, 24 l&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). The Petitioner has not identified our immediate prior decision was based on an 
incorrect application of law or policy. See 8 C.F.R. § 103.5(a)(3). 
In this motion, the Petitioner essentially restates assertions from his prior motions and appeal. For 
example, the Petitioner reasserts that for the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), his technical 
certificate in system analysis and development is related to his claimed area of exceptional ability, 
financial analysis. To support his argument, he points out, "according to O*Net Online, one of the 
occupational requirements of a Financial Analyst is to analyze business or financial data and develop 
financial or business plans." However, the Petitioner does not explain how his technical certificate in 
system analysis and development relates to afinancial analyst's occupational requirement of analyzing 
business or financial data and developing financial or business plans, as set out by the U.S. Department 
of Labor. See U.S. Department of Labor, O*NET Summary Report for "Financial and Investment 
Analysts," https://www.onetonline.org/1 ink/summary/13-2051.00. 
In addition, to support his argument, he points to our previous decision's analysis of his work 
experience for a different criterion, 8 C.F.R. § 204.5(k)(3)(ii)(B). He argues that we found 
commonalities between his job duties with his previous employer and the job duties of a financial 
analyst as described by the U.S. Department of Labor in the O*NET Summary Report for Financial 
and Investment Analysts. See id. However, the commonalities between the Petitioner's previous work 
experience and his intended occupation expressed in our prior decision relate to the criterion at 8 
C.F.R. § 204.5(k)(3)(ii)(B), instead of this criterion for his academic credentials. 
Similarly, for the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E), the Petitioner repeats claims that he has 
membership in professional associations, namely the Trade Union of Employees in Bank and Financial 
Establishments (Trade Union). He takes issue with our prior motion decision using the definition of 
"profession" under 8 C.F.R. § 204.5(k)(2), which he claims is used for individuals holding advanced 
degrees and is distinguishable from the term "professional" for this criterion. He references the 
Merriam-Webster definition of professional to show the Trade Union is a professional association 
under this criterion. We disagree with the Petitioner's interpretation of the term "professional" under 
8 C.F.R. § 204.5(k)(2). The regulations at 8 C.F.R. § 204.5(k)(2), including the definition of 
"profession", relate to individuals who are members of the professions holding advanced degrees and 
individuals of exceptional ability. The regulation at 8 C.F.R. § 204.5(k)(2) defines the term 
"profession" and uses the term "professional" to identify an individual as a member of a profession. 
For the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F), the Petitioner asserts that our prior decision 
incorrectly determined the evidence only demonstrates "recognition" of his performance, as opposed 
to his achievements or significant contribution. He maintains that our analysis of the evidence 
contradicts the Oxford English dictionary definition of "award", "a prize or other mark ofrecognition 
given in honor of an achievement" and "a distinction given to a recipient as a token of recognition of 
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excellence in a certain filed [sic]." But the Petitioner has misconstrued our prior decision's analysis 
of the evidence to the regulation. We acknowledge that the Petitioner has received recognition for his 
achievements and contributions; however, as pointed out in our prior decision, such recognition is not 
for achievements and significant contributions to the field of financial analysis, but instead for his 
achievements and contributions to his employer. While the Petitioner claims his "awards and 
recognition are a direct consequence of his distinction and contribution to the field," evidence in the 
record does not support his assertion. 
In sum, the Petitioner's motion to reconsider mainly disagrees with our prior conclusions without 
identifying any misapplication of law or policy or demonstrating our decision was incorrect based on 
the evidence in the record of proceeding. We have already considered and analyzed the Petitioner's 
evidence in the petition under the preponderance of evidence standard and found it insufficient to 
demonstrate eligibility for the requested benefit. See Matter of Coelho, 20 l&N Dec. at 473. 
111. CONCLUSION 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, the 
Petitioner has not established eligibility. On motion to reconsider, 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, we will dismiss the combined motions. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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