dismissed EB-2 NIW Case: Software Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 20215028 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : APR. 5, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree , Exceptional Ability , National 
Interest Waiver) 
The Petitioner, a software developer , seeks second preference immigrant classification as a member 
of the professions holding an advanced degree or an individual of exceptional ability in the sciences , 
arts, or businesses , 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 did not 
show that he qualifies for classification as an 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 
a subsequent appeal , concluding that the record did not establish the Petitioner qualifies as either a 
member of the professions holding an advanced degree or as an individual of exceptional ability in the 
sciences , arts , or business. On a combined motion to reopen and motion to reconsider , the Petitioner 
asserts that he qualifies under both threshold criteria. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review , we will dismiss the combined 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). 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 application. 
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 proceedings at the 
time of the decision . 8 C.F.R. § 103.5(a)(3). We do not consider new fact s or evidence in a motion 
to reconsider. 
II. ANALYSIS 
Although the Director concluded that the Petitioner had not established he is an individual of 
exceptional ability, the Director did not address whether the Petitioner qualifies as a member of the 
professions holding an advanced degree. Specifically, the Director found that the Petitioner satisfied 
the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(B) but that he did not satisfy at least one other criterion 
under 8 C.F.R. § 204.5(k)(3)(ii), of which a minimum of three are required to demonstrate exceptional 
ability. On appeal, the Petitioner reasserted that he also satisfied the criterion at 8 C.F.R. 
§ 2 04. 5 (k )(3 )(ii)(D) but he waived the remaining eligibility criteria. 1 We concluded that the Petitioner 
had not satisfied the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) and that he also did not establish he is a 
member of the professions holding an advanced degree. 2 On a combined motion, the Petitioner 
reasserts that he satisfies the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D) and that he is a member of the 
professions holding an advanced degree. We address the combined motion separately below. 
A. Motion to Reopen 
New evidence in support of the motion to reopen includes the following: (1) a letter from the 
Petitioner's accountant, explaining the Petitioner's manner of compensation for his work as a software 
developer; (2) a copy of the Petitioner's U.S. income tax return for 2020; and (3) a new academic 
credentials evaluation. 
1. Exceptional Ability 
We first note that the Petitioner filed the underlying petition in 2019. A petitioner must establish 
eligibility at the time of filing a visa petition. 8 C.F.R. § 103.2(b)(l). A visa petition may not be 
approved at a future date after a petitioner becomes eligible under a new set of facts. See Matter of 
Katigbak, 14 I&N Dec. 45, 49 (Comm'r 1971). The Petitioner's income in 2020, reported on his 
income tax return for that year, presents a set of facts related to his compensation that did not exist at 
the time of filing in 2019. Therefore, the copy of the Petitioner's U.S. income tax return for 2020may 
not establish eligibility related to this issue and we need not address it further. See 8 C.F.R. 
§ 103.2(b)(l); see also MatterofKatigbak, 14 I&N Dec. at 49. 
Next, the letter from the Petitioner's accountant submitted on motion to reopen asserts that the monthly 
"guaranteed payments" the Petitioner receives "are not shares distributions or dividends" but rather 
"the only way [ the Petitioner] can be paid since he is a member of the LLC" for which he works as a 
software developer. However, to satisfy the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), the evidence 
must show that the Petitioner has commanded a salary or remuneration for services developing 
software that is indicative of his claimed exceptional ability relative to others working in the field. See 
6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policymanual. The Petitioner described his 
1 See Matter olR-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. US. Att 'y Gen., 401 F.3d 1226, 1228 n2 
(11th Cir. 2005) (citing US. v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998)); Hristov v. Roark, No. 09-CV-
27312011, 2011WL4711885 at* I, *9 (E.D.N.Y. Sept. 30, 20 I I (stating that a plaintiff's claims were abandoned as he 
failed to raise them on appeal to the Administrative Appeals Office). 
2 To satisfy the crite1ion at 8 C .F .R. § 2 04.5 (k:)(3 )(ii)(D), the record must contain " [ e ]vidence that the alien has commanded 
a salary, orotherrenumeration[sic] for services, which demonstrates exceptional ability." 
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endeavor as a "career plan . .. to use the knowledge I have acquired to work on large scale [ s ]oftware 
[d]evelopment projects.... I will contribute directly to the field of software development by 
designing and developing software for companies where it is most needed." The accountant's letter 
submitted on motion does not address the lack of evidence in the record comparing the Petitioner's 
earnings related to software development to those of others with comparable responsibilities in 
software development , in order to establish whether such remuneration "demonstrates exceptional 
ability" under 8 C.F.R. § 204.5(k)(3)(ii)(D) , as we discussed in our decision . 
We also note that the letter from the Petitioner 's accountant informs that his annual income was 
R$321,700 and R$245 ,872.30 in 2018 and 2019, respectively. The significant decrease in the 
Petitioner's income from 2018 to 2019 does not support his claimed exceptional ability relative to 
others working in the field . Accordingly, the accountant's letter does not present a new fact that 
establishes the Petitioner satisfies the criterion at 8 C.F.R. § 204 .5(k)(3)(ii)(D). See 8 C.F.R. 
§ 103.5(a)(2). 
2. Advanced Degree 
The new academic credentials evaluation asserts that the Petitioner 's Brazilian "[d]iploma awarding 
the Grau de Tecn6logo degree in Computer Science, showing completion in 2008 for the three 
academic years required for attainment of the Grau de Tecn6logo" and the Petitioner's Brazilian "Lato 
Sensu Specialization Certificate in Project Management showing award for the Certificate in 2011 
following completion of one and one-half years of graduate study" combined amount to "the 
equivalent in time and content to the degree , Bachelor of Science in Computer Science with an 
additional major in Project Management , from a regionally accredited university in the United States." 
As noted in our prior decision , U.S. Citizenship and Immigration Services uses evaluations as advisory 
opinions only. Matter of Sea, Inc., 19 l&N Dec . 817 (Comm'r 1988). 
The regulation at 8 C.F.R. § 204.5(k)(2) defines an advanced degree as "any United States academic 
professional degree or fo reign equival ent degre e above that of a baccalaureate " ( emphasis added). 
The regulation further provides , "A United States baccalaureate degree or a for eign equivalent degree 
followed by at least five years of progressive experience in the specialty shall be considered the 
equivalent of a master 's degree" ( emphasis added). 
The regulation at 8 C.F.R. § 204.5(k)(2) contemplates a singular degree , whether a U.S. degree or a 
foreign degree equivalent to a U.S. degree. As we explained in our prior decision , the regulation at 
8 C.F.R. § 204.5(k)(2) does not contemplate a combination of a degree that is not equivalent to a U.S. 
degree with a specialization certificate that also is not equivalent to a U.S. degree , in order to form 
"the equivalent in time and content to [a] degree." Accordingly , the new academic evaluation does 
not present a credible new fact that establishes that the Petitioner qualifies as a member of the 
professions holding an advanced degree. See 8 C.F.R. § 103.5(a)(2). 
For the reasons discussed above, we will dismiss the motion to reopen. 
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B. Motion to Reconsider 
Turning to the motion to reconsider, the Petitioner requests us to "reconsider [our] determination 
regarding [the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D)] and apply the burden of proof that 'it is more 
likely than not' that the Petitioner has commanded a high salary and other remuneration for his work 
as a [ s ]oftware [ d ]eveloper which shows exceptional ability as compared to others working in his 
field." 
The Petitioner asserts on motion that the income inconsistencies are attributable to an average monthly 
income for an eight-year period beginning in 2011, R$28,500, compared to monthly income for the 
years 2018 and 2019, R$21,000 and R$25,200, respectively. Nevertheless, the record establishes that 
the Petitioner's monthly income is not only inconsistent but also below average in recent years. 
Moreover, despite requesting us to reconsider our determination, the Petitioner does not identify 
evidence in the record of proceedings at the time of our decision that provides a valid basis for 
comparing the Petitioner's earnings to those of others with comparable responsibilities, in order to 
establish whether such remuneration more likely than not "demonstrates exceptional ability" under 
8 C.F.R. § 204.5(k)(3)(ii)(D). See 8 C.F.R. § 103 .5(a)(3). 
The Petitioner also urges us, again, to conflate the Petitioner's income for software development and 
business ownership, suggesting that "the occupation 'business owner' is an accompanying title that is 
regularly a job title that can be combined with another job title, such as [s]oftware [d]eveloper." 3 
However, as we explained in our prior decision, the remuneration an individual receives for two 
separate job titles with two separate sets of skills and responsibilities is not to be conflated into an 
aggregate income for the purposes of 8 C.F.R. § 204.5(k)(3)(ii)(D). Moreover, as discussed above, 
even if we were to conflate the Petitioner's income, the Petitioner does not identify evidence in the 
record of proceedings at the time of our decision that provides a valid basis for comparing the 
Petitioner's earnings to those of others with comparable responsibilities, in order to establish whether 
such remuneration more likely than not "demonstrates exceptional ability" under 8 C.F.R. 
§ 204.5(k)(3)(ii)(D). See 8 C.F.R. § 103.5(a)(3). 
In summation, the Petitioner has not established on motion that we misapplied a law or policy and that 
our 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). Thus, we will dismiss the motion to reconsider. 
III. CONCLUSION 
As the Petitioner has not established by a preponderance of the evidence that he qualifies as either a 
member of the professions holding an advanced degree or as an individual of exceptional ability in the 
3 For example, the Petitioner asserts that an attorney who works in his or her own law firm receives income as a business 
owner that is "connected to said [a]ttorney's legal work" and, therefore, should be considered as total income. However, 
although the Petitioner addressed his entrepreneurial background in his career plan, as the Director noted, he "failed to 
clearly state [his] proposed undertaking orventure." 
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sciences, arts, or business, we conclude that the Petitioner has not demonstrated eligibility for second 
preference immigrant classification. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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