dismissed EB-2 NIW Case: Pilot

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: APR. 08, 2024 In Re: 30538892 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a pilot, seeks second preference immigrant classification (EB-2), 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. § l l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner did not 
establish eligibility for the underlying EB-2 immigrant visa classification as a member of the 
professions holding an advanced degree or an individual with exceptional ability. 1 We dismissed the 
Petitioner's subsequent appeal and motion to reopen concluding that he had not overcome the 
Director's adverse conclusion regarding his eligibility for the underlying EB-2 immigrant visa 
classification as an individual of exceptional ability. We then dismissed the Petitioner's second motion 
as it did not meet the requirements. The matter is now before us on a combined motion to reopen and 
reconsider. 2 
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. 
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. 
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification 
for the underlying EB-2 visa classification. Section 203(b )(2)(B)(i) of the Act. In order to qualify as 
an individual of exceptional ability in the sciences, the arts, or business, an individual must meet at 
1 The Director also found that the Petitioner did not establish that a waiver of the classification 's job offer requirement 
would be in the national interest. 
2 We decline the Petitioner 's request for oral argument. See 8 C.F.R. § 103.3(b )(2) (the AAO has "sole authority to grant 
or deny a request for oral argument") . 
least three of the six criteria set forth at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). If a petitioner satisfies these 
initial requirements, we then consider the entire record to determine whether the individual has a 
degree of expertise significantly above that ordinarily encountered. 8 C.F.R. § 204.5(k)(2); see also 
Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) (discussing a two-part review where the evidence 
is first counted and then, if it satisfies the required number of criteria, considered in the context of a 
final merits determination). 
On motion to reconsider, the Petitioner does not claim that our prior decision issued on August 30, 
2023, was decided in error. Instead, the Petitioner asserts that his attorney failed to provide the 
required evidence to meet two additional evidentiary criteria, 8 C.F.R. 204.5(k)(3)(ii)(B) and (D), to 
qualify him as an individual of exceptional ability. However, the Petitioner has not indicated that he 
is claiming ineffective assistance of counsel and does not cite to any precedent law or regulations or 
provide relevant evidentiary documents under Matter ofLozada, 19 I&N Dec. 637 (BIA 1988), aff' d, 
857 F.2d 10 (1st Cir. 1988) (setting forth the framework and documentary requirements for claims of 
ineffective assistance of counsel). 3 Therefore, we conclude that the Petitioner has not demonstrated 
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. 
On motion to reopen, the Petitioner offers as new evidence an employment letter (to demonstrate that 
he has at least ten years of full time experience in the occupation) and paystubs froml I 
(to demonstrate that he has commanded a salary) to meet other initial evidentiary criteria at 8 C.F.R. 
§ 204.5(k)(3)(ii)(B) and (D). However, we will only consider new evidence to the extent that it 
pertains to our latest decision as the scope of a motion is limited to "the prior decision" and "the latest 
decision in the proceeding." 8 C.F.R. § 103.5(a)(l)(i), (ii). We have already determined that the 
Petitioner has met the required three out of the six initial evidentiary criteria at 8 C.F.R. 
204.5(k)(3)(ii)(A), (C), and (E). Meeting additional two other criteria does not materially change the 
outcome of his exceptional ability claim, as the issue is whether the Petitioner established in the final 
merits determination that he has a degree of expertise significantly above that ordinarily encountered 
in his field pursuant to 8 C.F.R. § 204.5(k)(2). Here, the Petitioner's new evidence offered on motion 
to reopen, the employment letter and paystubs, 4 does not pertain to the final merits determination. 
Therefore, the Petitioner has not established new facts that would warrant reopening of the proceeding 
and we will not re-adjudicate the petition anew. 
3 Any appeal or motion based upon a claim of ineffective assistance of counsel requires: (1) a written affidavit of the 
noncitizen attesting to the relevant facts, setting forth in detail the agreement that was entered into with former counsel, 
the specific actions actually taken by the former counsel, and any representations that former counsel made about his or 
her actions; (2) evidence that the noncitizen informed former counsel of the allegation of ineffective assistance and was 
given opportunity to response, along with any response by prior counsel; and (3) evidence that the noncitizen filed a 
complaint with appropriate disciplinary authorities (e.g. with a state bar association) with respect to any violation of 
counsel's ethical or legal responsibilities or an explanation why the noncitizen did not file a complaint. Lozada, 19 T&N 
Dec. at 639. 
4 We note here that the pay stubs from cover the period from June 2023 to September 2023. The Petitioner 
must establish that all eligibility requirements for the immigration benefit have been satisfied from the time of filing. See 
8 C.F.R. § 103.2(b)(l). As this petition was filed back in October 2019, we cannot consider "facts that come into being 
only subsequent to the filing of a petition." Matter oflzummi, 22 l&N Dec. 169, 176 (Comm'r 1988) ( citing Matter of 
Bardouille, 18 l&N Dec. 114 (BIA 1981)). 
2 
Based on the foregoing, we conclude that the Petitioner's submission of additional evidence in support 
of the motion to reopen does not establish 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. 
3