The Petitioner seeks employment-based second preference (EB-2) immigrant classification as a member of the professions holding an advanced degree, 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).
SCOPS denied the petition, concluding the Petitioner did not establish his qualification for the underlying visa classification as an individual of exceptional ability, or that he merits a discretionary waiver of the job offer requirement in the national interest. We dismissed the Petitioner's subsequent appeal and three combined motions to reopen and reconsider. The matter is now before us on a fourth combined motion to reopen and reconsider. 8 C.F.R. § 103.5.
The Petitioner bears the burden ofproof 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 motion.
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 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). The scope of any motion is limited to the prior decision and the latest decision in the proceeding. 8 C.F.R. § 103.5(a)(l)(i), (ii). 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 or an individual of exceptional ability in the sciences, arts, or business. 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:
(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer( s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other renumeration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or (F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
certified English language translation of the resolution and we could not meaningfully determine whether the translated material was accurate and supported his claims. 2 We further noted that the English translation contained inconsistencies with the foreign language resolution which detracted from the translation's credibility. Further, the resolution indicated it came into force in 2022, after the Petitioner earned his CPA-10 certification and filed his petition. 3 In addition, the Petitioner did not sufficiently demonstrate how his financial analyst occupation corresponds to the descriptions contained in the Central Bank of Brazil resolution or establish that his occupation requires certification.
For the criterion at 8 C.F.R. § 204.5(k)(3)(ii)(D), the Petitioner contended he received remuneration that shows his exceptional ability. The Petitioner asserted that he received a monthly salary of approximately R$20,000, while pay lab.com indicates the average monthly salary for a bank technician in Brazil ranges from R$1,418 to R$5,292 and from R$1,733 to R$6,692 for a financial analyst. He claimed that payscale.com indicates a financial analyst median yearly salary is R$44,000 and top earners in the field have a yearly salary of R$210,000, while the Petitioner makes a minimum of R$240,000 per year. However, the record lacked sufficient evidence to support his claims. In the instant motion brief: the Petitioner argues that we failed to properly consider the submitted evidence and legal arguments. He submits a new English translation of.___________.
Resolution 3158 to address the inconsistencies and concerns about the resolution's effective date. The Petitioner contends that the resolution explicitly requires that professionals engaged in the distribution and mediation of securities and derivatives obtain certification through an examination administered by an entity with recognized technical expertise. He indicates that I Icomplies with this requirement by certifying professionals through the CPA-10 and CPA-20 programs which align with Resolution 3158, the Petitioner's employer mandates its employees obtain certifications through I Ito ensure adherence tol ~egulations, and the Petitioner's CPA-10 and CPA-20 certifications are legally mandated for professionals in his field. Regarding the resolution's effective date, the Petitioner argues that Resolution 3158 came into effect in 2003, prior to the Petitioner's filing date. 4
The Petitioner submits a certification of competence for the new English translation of.... l ______.
salary profiles and was last updated in October 2024. The Petitioner argues that the evidence establishes he has commanded a salary that is well above the prevailing wage, thereby affirming his exceptional ability in the field. However, the Petitioner's pay records reflect that he received a monthly salary in 2019 that ranged from R$19,877 to R$21,204, with his occupation listed as New Bank Technician. The Petitioner has not established that the evidence presented on motion refers to a similar time period and occupation that allows us to make a relevant comparison within the Petitioner's specific occupation.
The Petitioner reiterates his claim that we erred in concluding he did not establish eligibility for the criteria at 8 C.F.R. § 204.5(k)(3)(ii)(A), (B), (E), and (F) and contends that the evidence shows his technical certificate in system analysis and development is related to his claimed area of exceptional ability, he has over a decade of experience in the financial sector, he holds membership in I I and he has received recognition for his achievements and significant contributions.Exceptional ability not established While the Petitioner disagrees with our prior conclusions, he does not demonstrate our decision was incorrect based on the evidence in the record of proceeding. We have already considered and analyzed the Petitioner's evidence in the petition under the preponderance of evidence standard and found it insufficient to demonstrate eligibility for the requested benefit. 5 Although the Petitioner has submitted additional evidence in support of the motion to reopen, the Petitioner has not established 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, we will dismiss the combined motion. 8 C.F.R. § 103.5(a)(4).
ORDER: The motion to reopen is dismissed.
FURTHER ORDER: The motion to reconsider is dismissed.