dismissed EB-2 NIW Case: Financial Management

U.S. Citizenship 
and Immigration 
Services 
In Re: 26053854 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 10, 2023 
Form 1-140, Immigrant Petition for Alien Worker (National Interest Waiver) 
The Petitioner, a financial manager, seeks employment-based second preference (EB-2) immigrant 
classification as a member of the professions holding an advanced degree and an individual of 
exceptional ability, 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 that the Petitioner did not 
establish eligibility for the requested classification as either a member of the professions holding an 
advanced degree or an individual of exceptional ability. The Director also concluded that the 
Petitioner did not establish that a waiver of the required job offer, and thus of the labor certification , 
would be in the national interest. We affirmed the Director's decision and dismissed the Petitioner's 
subsequent appeal. The matter is now before us on combined motions 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 
combined motions. 
I. LAW 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). We do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable . Instead, "new facts" are facts that are relevant to the issue(s) raised on motion and 
that have not been previously submitted in the proceeding , which includes the original petition. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
A motion to reconsider must establish that our 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 proceeding s at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). We do not consider new facts or evidence in a motion 
to reconsider. 
By regulation, the scope of a motion is limited to the "prior decision." 8 C.F.R. § 103.5(a)(l)(i). 
Therefore, the filing before us is not a motion to reopen and reconsider the denial of the petition. 
Instead, it is a motion to reopen and reconsider our most recent decision, the dismissal of the 
Petitioner's appeal. Accordingly, we examine any new facts and arguments to the extent that they 
pertain to our prior dismissal of the Petitioner's appeal. 
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 1 or an individual 
of exceptional ability2 in the sciences, arts, or business. Section 203(b )(2)(B)(i) of the Act. 
Once a petitioner demonstrates eligibility as either a member of the professions holding an advanced 
degree or an individual of exceptional ability, they must then establish that they merit a discretionary 
waiver of the job offer requirement "in the national interest." Section 203(b)(2)(B)(i) of the Act. 
While neither the statute nor the pertinent regulations define the term "national interest," Matter of 
Dhanasar, 26 I&N Dec. 884, 889 (AAO 2016), provides the framework for adjudicating national 
interest waiver petitions. Matter of Dhanasar states that U.S. Citizenship and Immigration Services 
(USCIS) may, as matter of discretion, 3 grant a national interest waiver if the petitioner demonstrates 
that: 
• The proposed endeavor has both substantial merit and national importance; 
• The individual is well-positioned to advance their proposed endeavor; and 
• On balance, waiving the job offer requirement would benefit the United States. 
II. ANALYSIS 
In our appellate decision, we determined that the Petitioner did not establish that he was a member of 
the professions with an advanced degree. We concurred with the Director that the Petitioner provided 
evidence that he holds the foreign equivalent of a U.S. bachelor's degree in administration earned in 
2005 in Brazil. We also concurred with the Director that the Petitioner did not establish that he 
possessed more than five years of progressive post-baccalaureate experience in the specialty. See 8 
C.F.R. § 204.5(k)(3)(i)(B). We further determined that the Petitioner did not establish that he was an 
individual of exceptional ability because he did not meet at least three of the six evidentiary criteria at 
8 C.F.R. § 204.5(k)(3)(ii), and because the record did not establish that the Petitioner's experience is 
beyond that which is ordinarily encountered in the profession. As the documentation in the record did 
1 An advanced degree is any United States academic or professional degree or a foreign equivalent degree above that of a 
bachelor's degree. A United States bachelor's degree or foreign equivalent degree followed by five years of progressive 
experience in the specialty is the equivalent of a master's degree. 8 C.F.R. § 204.5(k)(2). 
2 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. 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). Meeting at least three criteria, however, does not. in and of 
itself, establish eligibility for this classification. 2 If a petitioner does so, 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. 
3 See also Poursina v. USCIS, 936 F.3d 868 (9th Cir. 2019) (finding USCIS' decision to grant or deny a national interest 
waiver to be discretionary in nature). 
2 
not establish the Petitioner's eligibility for the requested EB-2 classification we concluded that further 
analysis of his eligibility for a national interest waiver would serve no meaningful purpose.4 
We first note that the Director issued a request for evidence (RFE) analyzing the Petitioner's initial 
evidence in support of his request for classification as both a member of the professions with an 
advanced degree and an individual with exceptional ability. The RFE discussed the initial record in 
detail and gave the Petitioner an opportunity to submit additional evidence in attempt to establish his 
eligibility for the requested classification. In response to the RFE, the Petitioner reiterated his claim 
to qualify as a member of the professions with an advanced degree and submitted new evidence to 
document his claimed five years of experience. However, he did not provide any additional 
information or further his claim to qualify as an individual with exceptional ability. Nevertheless, the 
Director fully analyzed the Petitioner's claim to qualify as both a member of the professions with an 
advanced degree and as an individual with exceptional ability in his decision, including whether the 
evidence met each of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii). 
On appeal, the Petitioner again reiterated his claim to qualify as a member of the professions with an 
advanced degree and did not address the Director's determination that he did not establish eligibility 
as an individual with exceptional ability. Where a petitioner does not address issues in an adverse 
decision we consider them abandoned. See Matter of R-A-M-. 25 I&N Dec. 657. 658 n.2 (BIA 2012) 
(stating that when a filing party fails to appeal an issue addressed in an adverse decision, that issue is 
waived). However, because we provided an analysis of the Petitioner's eligibility as an individual 
with exceptional ability in our decision on appeal and the Petitioner raises this on motion, we will 
address it here. 
On motion, the Petitioner submits a brief with new evidence, as well as copies of evidence already in 
the record. The Petitioner's new evidence includes: 
• A December 2022 course-by-course academic evaluation of his academic 
credentials. 
• His own undated statement describing his experience with his previous employer. 
• An English translation (without original foreign language) of a December 2022 
printout from a Brazilian website discussing salary information for an 
"administrator." 
• Information describing the Federal and Regional Councils of Administration in 
Brazil as organizations with oversight of the administrative profession. 
In his brief on motion the Petitioner states that "USCIS should have but failed to recognize [his] five 
years of progressive experience ... [ and his] exceptional ability." The Petitioner does not assert that 
4 The Director detennined that the Petitioner's proposed endeavor as a financial manager has substantial merit. However, 
he concluded that the Petitioner did not establish that the proposed endeavor is ofnational imp01tance to meet the remainder 
of the first prong of the Dhanasar framework. He fmther concluded that the Petitioner did not establish that he is well­
positioned to advance the proposed endeavor or that, on balance, waiving the job offer requirement would benefit the 
United States, under the second and third prongs of Matter of Dhanasar. In our appeal decision, we declined to reach but 
hereby reserved remaining arguments concerning eligibility for a national interest waiver. Sec INS v. Bagamasbad, 429 
U.S. 24, 25 (1976) (finding it unnecessary to analyze additional grounds when another independent issue is dispositive of 
the appeal); see also Matter of L-A-C-, 26 l&N Dec. 516, 526 n.7 (BIA 2015) (declining to reach alternative issues on 
appeal where an applicant is otherwise ineligible). 
3 
our previous appeal decision was based on an incorrect application of law and/or policy. As noted 
above, we do not consider new facts or evidence in a motion to reconsider. Therefore, the Petitioner 
has not met the requirements of a motion to reconsider. 
In our prior appeal decision, we agreed with the Director that the Petitioner presented evidence that he 
earned the foreign equivalent of a U.S. bachelor's degree in administration. However, we stated that 
the evidence in the record does not establish that the Petitioner's employment experience was as a 
financial manager, the claimed specialty and the field of the Petitioner's proposed endeavor. We also 
stated that the employment letters in the record indicate that the Petitioner held the same position with 
one employer for ten years and do not establish that the experience was progressive in nature. 
Additionally, we noted that the name of the Petitioner's previous em lo er was inconsistent in that 
the employment letters in the record state the em lo er as ' " while the 
Petitioner lists the employer on his resume as _____________ The Petitioner 
must resolve these inconsistencies with independent, objective evidence pointing to where the truth 
lies. Matter of Ho, 19 I&N Dec. 582, at 591-92. 
In discussing the Petitioner's eligibility as an individual with exceptional ability, in our appeal decision 
we examined whether the evidence met each of the six criteria at 8 C.F.R. § 204.5(k)(3)(ii). We noted 
that the Petitioner's official academic record does not support a finding of eligibility under 8 C.F.R. § 
204.5(k)(3)(ii)(A) because the record does not demonstrate that a bachelor's degree in administration is 
related to the area of claimed exceptional ability in financial management. With respect to other 
criteria under which the Petitioner claims eligibility, we noted: 
• The Petitioner has not sufficiently established that he has ten years of full-time 
experience in the area of financial management as required under 8 C.F.R. § 
204.5(k)(3)(ii)(B). 
• The evidence the Petitioner provided to establish his salary from 2012 to 2015 does not 
correlate to the untranslated 2017/2018 salary data for the profession of administrator 
in the record and does not establish eligibility under 8 C.F.R. § 204.5(k)(3)(ii)(D). 
• The Petitioner's 2015 professional identity card and 2018 registration certificate from the 
Regional Council of Administration did not establish eligiblity under 8 C.F.R. § 
204.5(k)(3)(ii)(C) or (E), in that the evidence was not valid at the time of filing. 
Additionally, the record did not demonstrate the relevance and significance of the 
evidence where the Petitioner claims to have been employed in the profession from 
2005 to 2015, 10 years before having been issued an identity card and 13 years before 
registering with the Regional Council. 
In his brief on motion, the Petitioner references evidence already in the record. The deficiencies in 
the already submitted evidence have been identified and discussed in our prior decision. 5 The 
Petitioner's brief on motion does not overcome those deficiencies and does not establish that he 
5 On motion the Petitioner again submits the same letter from his previous employer which states his job title as 
"administrator" and does not describe his job duties in detail beyond "performing administrative work." He also resubmits 
a letter from ______ attesting that the Petitioner "developed and implemented the financial control system" 
during a project in 2013 to build a soccer stadium in I l Brazil, but does not describe the Petitioner's 
progressive experience beyond one project in one year. The Petitioner does not submit evidence to resolve the 
inconsistency in the name of his previous employer that we noted in our appeal decision or address this on motion. 
4 
possesses five years of progressive post-baccalaureate experience or that he is an individual with 
exceptional ability. Nor does the new evidence submitted on motion overcome these deficiencies. 
The academic evaluation does not address the lack of evidence to establish that the Petitioner's post­
baccalaureate experience was progressive in nature or in the specialty of financial management. The 
Petitioner's statement describing his job duties is self-serving and does not reflect independent, 
objective evidence of his claimed progressive experience. A petitioner may submit a letter or affidavit 
that contains hearsay or biased information, but such factors will affect the weight to be accorded the 
evidence in an administrative proceeding. See Matter of D-R-, 25 I&N Dec. 445, 461 (BIA 2011) 
( citations omitted). Here, the Petitioner does not submit independent, objective evidence to 
demonstrate the progressive nature of his employment or that it was in the specialty of financial 
management. Therefore, the new evidence does not establish that the Petitioner is a member of the 
professions with an advanced degree. 
Similarly, the new evidence does not address the deficiencies in the Petitioner's evidence claiming 
eligibility as an individual with exceptional ability. The academic evaluation does not demonstrate 
that the Petitioner's course of study in administration is comparable to an education in financial 
management, as required by 8 C.F.R. § 204.5(k)(3)(ii)(A). Although the evaluation identifies courses 
in math, statistics, and accounting, the transcript lists only one course titled financial management. 
Further, the analysis and advisory evaluation states that the Petitioner's foreign education is equivalent 
to a four-year bachelor of business administration from an accredited U.S. institution, but does not list 
any specialty or concentration to indicate that the Petitioner's course of study was focused on financial 
management. 
In his brief, the Petitioner states that he submits his 2015 professional identity card and 2018 registration 
certificate from the Regional Council of Administration in attempt to establish eligiblity under 8 C.F.R. 
§ 204.5(k)(3)(ii)(C) as a license to practice the profession or certification for a particular profession. 
He also states that he does not submit evidence of membership in a professional association under 8 
C.F.R. § 204.5(k)(3)(ii)(E). Although the Petitioner submits new evidence on motion describing the 
Federal and Regional Councils of Administration in Brazil as organizations with oversight of the 
administrative profession, he does not explain how he was able to practice in the profession of 
administrator from 2005 to 2015 without a professional identity card or registration, which was issued 
to the Petitioner in 2015. Additionally, the 2022 salary data does not correlate to the evidence in the 
record of the Petitioner's salary in 2012 to 2015 and does not establish eligibility under 8 C.F.R. § 
204.5(k)(3)(ii)(D). 
Upon review of the motion to reopen, we conclude that the Petitioner has not stated new facts 
supported by documentary evidence that warrant reopening our prior decision. 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). Here, that burden has not been met. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
5