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MotionNational Interest Waiver · Motion to reopen & reconsider

Automotive technician

Engineering · decided 2025-02-13 · TSC · FEB132025_09B5203

Official PDF on uscis.gov

How each part of the test was decided

Read from the appeals office's own sentences by fixed rules, not from the Director's findings or the petitioner's arguments. Each result shows the sentence it came from. The official PDF controls.

  • Step 0Eligible for EB-2Not decided
    The Director's denial rested on this
    The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not established eligibility as an individual of exceptional ability and that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. p. 1
  • Prong 1Merit and national importanceNot decided

    No finding on this in the appeals office's own words.

  • Prong 2Well positioned to advance itNot decided

    No finding on this in the appeals office's own words.

  • Prong 3Worth waiving the job offerNot decided

    No finding on this in the appeals office's own words.

The decision in brief

Sentences picked out of the text automatically. Read them in context below; the official PDF controls.

Summary sentence

The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not established eligibility as an individual of exceptional ability and that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. See in text

What the AAO decided

  • Upon review, we will dismiss the motion. See in text
  • Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). See in text
  • ORDER: The motion to reconsider is dismissed. See in text
Read the full decision (2 pages)

Objections found (1)

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Full decision

OCR text from the official PDF, reformatted for reading. Scan errors carry over; the PDF controls.

Highlighted: Outcome (4) Tagged objection (1)Matter of X citation
Decision header
U.S. Citizenship and Immigration Services · Non-Precedent Decision of the Administrative Appeals Office · Date: FEB. 13, 2025 · In Re: 36631866 · Motion on Administrative Appeals Office Decision · Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver)

The Petitioner, an automotive technician, seeks employment-based second preference (EB-2) immigrant classification as an individual of exceptional ability, and a national interest waiver of the job offer requirement attached to this classification. See section 203(b)(2) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(2).

The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not established eligibility as an individual of exceptional ability and that a waiver of the required job offer, and thus of the labor certification, would be in the national interest. We dismissed asubsequent appeal and two combined motions to reopen and reconsider. The matter is now before us on motion to reconsider.

The Petitioner bears the burden of proof to demonstrate eligibility by apreponderance of the evidence. Matter of Chawathe, 25 l&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the motion.

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). Because the scope of a motion is limited to the prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. § 103.5(a)(l)(i), (ii). We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit.

On motion, the Petitioner submits a brief and a copy of our prior decision. The Petitioner repeats his assertion from his prior combined motion to reopen and reconsider that we erred by not giving proper deference to the provided credential evaluation. However, and as explained in our prior decision, even if an evaluator determined his education and work experience to be the equivalent of a U.S. bachelor's degree, the Petitioner still has not met the plain language of the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A) which requires "[a]n official academic record showing that the alien has adegree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability." (emphasis added). Further, while we acknowledge the Petitioner's claim, through counsel, "that military training, including that provided by the Brazilian I is widely recognized as equivalent to formal academic education, meeting the educational I p. 2 requirements for exceptional ability," counsel's unsubstantiated assertions do not constitute evidence.Claims not backed by documents See, e.g., Matter of S-M-, 22 I&N Dec. 49, 51 (BIA 1998) ("statements in a brief, motion, or Notice of Appeal are not evidence and thus are not entitled to any evidentiary weight"). The Petitioner's contentions merely reargue facts and issues we have already considered in our previous decisions. See e.g., Matter of O-S-G-, 24 l&N Dec. 56, 58 (BIA 2006) ("a motion to reconsider is not a process by which a party may submit, in essence, the same brief presented on appeal and seek reconsideration by generally alleging error in the prior Board decision").

The Petitioner also asserts that we erred in not conducting a final merits determination of exceptional ability because he believes he has established that he meets the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(A), and has thereby met three of the six categories of evidence, as required under 8 C.F.R. § 204.5(k)(3)(ii).1 As acknowledged by the Petitioner, demonstrating exceptional ability is a two-step process. See generally 6 USCIS Policy Manual F.5(B)(2), https://www.uscis.gov/policymanual/volume-6-part-f-chapter-5 (explaining, as guidance, officers should use atwo-step analysis to evaluate the evidence submitted with the petition to demonstrate eligibility for exceptional ability classification). If a petitioner initially submits documentation that satisfies at least three of six categories of evidence at 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F), 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. Because the Petitioner has not satisfied three of the six criteria, we did not err as a matter of law or policy. For the reasons above, 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 motion will be dismissed. 8 C.F.R. § 103.5(a)(4).

ORDER: The motion to reconsider is dismissed.