dismissed EB-2 NIW Case: Financial Analysis

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 10, 2024 In Re: 33767713 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition 
for Alien Workers (National Interest Waiver) 
The Petitioner, a financial analyst, seeks classification seeks second preference immigrant 
classification (EB-2) as an individual of exceptional ability, as well as a national interest waiver of the 
job offer requirement attached to this EB-2 immigrant classification. See Immigration and Nationality 
Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). U.S. Citizenship and Immigration Services 
(USCIS) may grant this discretionary waiver of the required job offer, and thus of a labor certification, 
1when it is in the national interest to do so. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
qualify for the underlying EB-2 classification as an individual of exceptional ability and did not merit 
a discretionary waiver of the job offer requirement, and thus a labor certification, under the analytical 
framework in Matter ofDhanasar, 26 I&N Dec. 884 (AAO 2016). We dismissed a subsequent appeal 
and a combined motion to reopen and reconsider, concluding that the Petitioner did not establish his 
eligibility for the EB-2 classification as an individual of exceptional ability. 2 The matter is now before 
us on a second combined motion to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&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). 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). 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. 
1 See also Flores v. Garland, 72 F.4th 85, 88 (5th Cir. 2023) (joining the Third, Ninth, Eleventh, and D.C. Circuit Courts 
to conclude the national interest waiver determination is discretionary in nature) . 
2 See In Re: 27674457 (AAO Sept. 13, 2023) and In Re: 30708335 (AAO Apr. 15, 2024). 
The regulation at 8 C.F.R. § 204.5(k)(2) defines exceptional ability as "a degree of expertise significantly 
above that ordinarily encountered in the sciences, arts, or business." To demonstrate exceptional ability, 
a petitioner must submit at least three of the types of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii): 
(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 ofleaming relating 
to the area of exceptional ability; 
(B) Evidence in the form ofletter(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. 
If the above standards do not readily apply, the regulations permit a petitioner to submit comparable 
evidence to establish their eligibility. 8 C.F.R. § 204.5(k)(3)(iii). 
But meeting at least three criteria does not, in and of itself, establish eligibility for this classification. 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. 
II. ANALYSIS 
On motion, the Petitioner claims that he disagrees with our prior decision and submits "pertinent facts 
and new evidence" regarding his eligibility for EB-2 classification as an individual of exceptional 
ability. In evaluating the new evidence and claims of error under each criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(A)-(F), we conclude that the Petitioner's submission of new facts or evidence on 
motion does not establish his qualification for the EB-2 classification and warrant reopening of the 
proceeding. We further conclude that although we reconsider and withdraw our prior decision's 
determination under the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B), the Petitioner still has not 
demonstrated that our prior decision was based on an incorrect application of law or policy for the 
remaining criteria. Therefore, the Petitioner still has not satisfied the threshold requirement of meeting 
three of the six categories as an individual of exceptional ability, as discussed below. 
2 
1. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) 
The Petitioner has the burden of showing by a preponderance of the evidence that his Titulo de 
Tecn6logo (Title of Technologist) diploma in system analysis and development is related to his 
claimed area of exceptional ability as a financial analyst. See 8 C.F.R. § 204.5(k)(3)(ii)(A). The 
Petitioner does not provide any new evidence or assert new facts on this issue. Instead, the Petitioner 
contends through his counsel that his "extensive knowledge in system analysis and development has 
been fundamental to his proficiency in utilizing advanced tools for financial data analysis." However, 
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"). As the Petitioner does not submit new 
evidence on motion to satisfy this criterion or assert that our prior decision was based on incorrect 
application oflaw or policy, we affirm our previous determination that the Petitioner has not met this 
criterion. 
2. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(B) 
In our prior decision, we concluded that the Petitioner did not meet his burden of proof in 
demonstrating that he had at least ten years of full-time experience in the occupation for which he is 
being sought. 8 C.F.R. § 204.5(k)(3)(ii)(B). On second motion, the Petitioner contends that his 
employment at ___________ from 2000 to 2019 in various positions (bank 
technician, bank branch treasurer, pledge appraiser, relationship manager, general manager) meets this 
criterion. The Petitioner explains thatl is a large financial institution in Brazil and the duties 
performed during his employment are similar to duties of a financial analyst or a financial manager 
described in the Department of Labor's Occupational Information Network (O*NET). The Petitioner 
offers the following new documents on motion: an article discussing competitiveness in applying for 
jobs atl IO*NET online documents describing duties of a financial analyst/manager; and a list of 
duties performed by a general manager/relationship manager atl I 
In comparing the Petitioner's duties at and the descriptions of a financial analyst/manager in 
O*NET, we determine that they have similarities and commonalities, such as providing financial 
advice on investments and credit alternatives, maintaining financial accounts and records, and 
analyzing financial portfolios and market trends, overseeing sales of bank products such as loans, 
insurance, credit cards, checking and savings accounts. 3 Therefore, we conclude that the Petitioner 
has met this criterion under the preponderance of evidence standard. 
3. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(C) 
We previously concluded that the Petitioner's "CPA-10" certification from ANBIMA (the Brazilian 
Association of Financial and Capital Market Entities) did not satisfy the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(C). Specifically, we determined that the evidence did not show that such certification 
from ANBIMA indicated "governmental approval to practice as a financial analyst or that the 
3 We are cognizant that some descriptions of his duties during his employment at as a new banking technician and 
a general manager correspond to duties of a general customer service position, but there are enough overlapping duties 
similar to those performed by a financial analyst and/or a financial manager. 
3 
certification was necessary to do the job." We also noted that the standards for obtaining "CPA-10" 
certification were ambiguous as the certification was open to students. The Petitioner contends that 
we "impose[d] novel requirements beyond those set forth in the regulation." 4 
We acknowledge that the plain language of the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(c) does not 
require the Petitioner to demonstrate that the licensing or certification must come from a government 
entity or precludes students from earning such license or certification. Therefore, we withdraw our 
prior decision's statements on this issue. However, the Petitioner still has not demonstrated that a 
license or certification is required or necessary to practice his profession or occupation. The Petitioner 
submits on motion the bylaws of ANBIMA, a trade organization in Brazil representing institutions in 
the financial and capital markets. The bylaws demonstrate that ANBIMA's mission is to provide 
technical and legal assistance to its members in the matters of financial and capital markets, defining 
self-regulations codes, establishing ethical principles, and offering educational programs. However, 
the bylaws do not discuss the specific "CPA-10" certification as a requirement to practice the 
profession or occupation. Therefore, the record does not indicate the Petitioner is required to obtain 
this CP A-10 certification in order to practice his profession or occupation and we conclude that he has 
not met this criterion. 
4. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) 
We affirm our prior decision that the Petitioner has not met the criterion at 8 C.F.R. 
§ 204.5(k)(3)(ii)(D) of commanding a salary or other remuneration for services which demonstrates 
exceptional ability. On motion, the Petitioner does not provide new evidence but claims our prior 
decision erred because instead of evaluating whether his salary was sufficient to demonstrate that he 
has commanded a high salary, we focused on incompatibility of comparing a financial analyst's salary 
to a general manager's salary. The Petitioner's claims are unpersuasive as the regulation requires not 
only showing of commanding a high salary, but that the high salary is a result of one's exceptional 
ability. Here, the record does not reflect that the Petitioner's salary was a direct result of his 
exceptional ability, either as a general manager or as a financial analyst. Therefore, the Petitioner has 
not met this criterion. 
5. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E) 
The Petitioner has claimed that his membership in the Trade Union of Employees in Bank and 
Financial Establishments ('Trade Union") meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(E). We 
concluded that the record did not contain sufficient evidence of the Trade Union's composition to 
evaluate whether it was a professional association and therefore, the Petitioner did not meet this 
criterion. 
On motion, the Petitioner contends that the Trade Union is a professional organization as its bylaws 
contain the following language: "[the Trade Union] is constituted for the purpose of defending and 
legally representing the professional category of employees in bank establishments . . . aiming at 
4 The Petitioner reasons that although the criterion requires a license or certification to practice the profession. such license 
or certification may not require "a previous degree" which would allow a student to obtain a ce1tification and "a bus driver 
[to acquire] a commercial driver's license." 
4 
improving the living and working conditions of its members, the independence and autonomy of union 
representation, as well as the expansion of social, economic, and political democracy in Brazil." 
However, the mere use of word "professional" in the translated version of the Trade Union's bylaws 
does not automatically establish that the Trade Union is a professional association, as required by the 
regulation. We note that the term "profession" is defined at 8 C.F.R. § 204.5(k)(2) as "any occupation 
for which a United States baccalaureate degree or its foreign equivalent is the minimum requirement 
for entry into the occupation." The Petitioner has not shown that his occupation requires a U.S. 
bachelor's degree or foreign equivalent or cited to any membership requirements in the bylaws 
requiring that a bachelor's degrees for the members. Consequently, the record does not sufficiently 
establish the Trade Union as a professional association as contemplated in the regulations, and we 
conclude the Petitioner has not met this criterion despite the submission of the new evidence. 
Furthermore, the Petitioner does not raise any claims of error by our prior decision based on incorrect 
application of law or policy. 
6. Criterion at 8 C.F.R. § 204.5(k)(3)(ii)(F) 
Although the Petitioner submitted recommendation letters from his work colleagues or his workplace 
certificates and awards, we previously concluded that such evidence only demonstrate recognition for 
his performance by his previous employer, instead of showing the Petitioner's achievement or 
significant contributions and expertise significantly above that ordinarily encountered in the field of 
financial analysis. On motion, the Petitioner does not submit any new evidence for this criterion or 
contend that our prior decision erred as a matter oflaw. As the Petitioner has not met the requirements 
of a motion to reopen or a motion to reconsider, we affirm our prior decision that he has not met this 
criterion. 
III. CONCLUSION 
Based on the foregoing, we conclude that the Petitioner's submission of additional evidence in support 
of the motion to reopen does not establish his 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, the combined motion will be dismissed. 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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