dismissed EB-2 NIW Case: Security

U.S. Citizenship 
and Immigration 
Services 
In Re: 19127968 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JAN. 19, 2022 
Form I-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner seeks second preference immigrant classification as an individual of exceptional ability, 
as well as a national interest waiver of the job offer requirement attached to this EB-2 classification. 
See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not 
established that he was individual of exceptional ability or that a waiver of the required job offer, and 
thus of the labor certification, would be in the national interest. We dismissed the Petitioner's 
subsequent appeal. The matter is again before us on a combined motion to reopen and motion to 
reconsider. On motion, the Petitioner submits a brief and additional evidence. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motion to reopen. 
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 (1) state the reasons for reconsideration and be supported 
by any pertinent precedent decisions to establish that the decision was based on an incorrect 
application of law or U.S. Citizenship and Immigration Services (USCIS) policy, and 
(2) establish that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the initial decision. 8 C.F.R. § 103.5(a)(3). We may grant a motion that satisfies these 
requirements and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
As an initial matter, the review of any motion is narrowly limited to the basis for the prior adverse 
decision. 8 C.F.R. § 103 .5(a)(l )(i). Accordingly, we examine any new facts and arguments to the 
extent that they pertain to our prior dismissal of the Petitioner's appeal. 
The regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for 
demonstrating eligibility as an individual of exceptional ability. A petitioner must submit 
documentation that satisfies at least three of the six categories of evidence. 
In denying the petition, the Director determined that the Petitioner had met the criteria at 8 C.F.R 
§ 204.5(k)(3)(ii)(A) and (B) and we agreed. On appeal, the Petitioner asserted that he also met the 
criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D). We informed the Petitioner that, because he did not address 
the remaining criteria, we considered 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). See also Sepulveda v. U.S. Att'v Gen., 401 F.3d 1226. 1228 n. 2 (111h 
Cir. 2005). citing United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998); Hristov v. 
Roark, No. 09-CV-27312011, 2011 WL 4711885 at *l, *9 (E.D.N.Y. Sept. 30, 2011) (plaintiffs 
claims were abandoned as he failed to raise them on appeal to the AAO). As a result, we limited our 
review to the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), which requires "[e]videncethat the alien has 
commanded a salary, or other remuneration for services, which demonstrates exceptional ability." 
In our prior decision, we discussed the deficiencies in the submitted documentation and explained that 
to satisfy this criterion, the evidence must show that the Petitioner has commanded a salary or 
remuneration for services that is indicative of his claimed exceptional ability relative to others working 
in the field, not to the United States generally. 6 USCIS Policy Manual F.5(B)(2), 
https://www.uscis.gov/policymanual. We ultimately concluded that the Petitioner had not 
demonstrated that his remuneration is a result of his exceptional ability, rather than thel I 
standardized pay scale for his position and time in grade. 1 
On motion, the Petitioner generally alleges that because we did not find that the Petitioner met at least 
four of the six criteria, it was an "error of law." However, the Petitioner does not address our 
conclusion that, because he only asse1ied that he met the remuneration criterion on appeal, the 
remaining criteria were considered abandoned. 2 Regardless, the Petitioner has not established that our 
decision was (1) based on an incorrect application oflaw or USCIS policy, and (2) incorrect based on 
the evidence in the record of proceedings at the time of the initial decision. 8 C.F.R. § 103 .5(a)(3). 
The Petitioner also ~rovides a new letter from the chief security advisor at 
I , ~ ~ land updated information concerning his total compensation. The 
letter indicates that: 
[T]o be hired [] at even an entry level post, [ a candidate] must possess outstanding credentials 
and have proven experience in the following areas: extensive police or military background 
with proven investigative skills and accomplishments; evidence of at least 10 years prior 
experience and accomplishments .... [The] position is a very demanding and dangerous one and 
1 For example, as we explained, the informationfroJ I indicated that "[t]he level of pay forstaffin the 
Professionalandhigherca tegories that are recruited internationally is set by reference to the highest paying national civil 
service" and that "[t]he base salary, which is determined by the grade of the post specified in the job opening and the 
existence of any dependents, is the same throughout! I system." We also noted that the Petitioner 
provided information regarding other position categories, but not for his own. 
2 As the remaining criteria were abandoned, we will limit our discussion to the evidence submitted in support of the 
criterion at 8 C.F.R. § 204.5(k:)(3)(ii)(D). 
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the high compensation he receives is definitely reflective of the demands of this job, but [also] 
of his abilities to do the job. 
None of the submitted evidence, however, sufficiently establishes that the Petitioner's remuneration 
is based on his exceptional ability instead of his employer's standardized pay scale. Without more, 
we cannot conclude that the Petitioner has met this criterion. 
III. CONCLUSION 
The Petitioner has not submitted new evidence sufficient to establish that he meets the criterion at 
8 C.F.R. § 204.5(k)(3)(ii)(D). Therefore, he has not met the requirements for a motion to reopen. 
Furthermore, he has not established that our prior decision was based on an incorrect application of 
law or policy. As a result, he has not met the requirements for a motion to reconsider. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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