dismissed EB-1A Case: Acupuncture

• ... 
identifYing data deleted to 
prev~nt Clearly unWaJTanlea 
invasion of personal privacy 
ftlBUCCOP\ 
INRE: Petitioner: 
Beneficiary: 
u.s. Department or Homeland Security 
U.S. Citizenship and Immigration Services 
Office oj Administrative Appeals MS 2090 
Washington, DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: SEP 2 3 2010 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act; 8 U.S.c. § 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the 
documents related to this matter have been returned to the office that originally decided your case. Please 
be advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form I-290B, Notice of Appeal or 
Motion, with a fee of$585. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
J)lJ~JJY1c1G· 
( Perry Rhew 
1J Chief, Administrative Appeals Office 
www.uscis.gov 
( _. 
DISCUSSION: The Director, Nebraska Service Center, denied this employment-based 
immigrant visa petition on September 22, 2008. The Administrative Appeals Office (AAO) 
dismissed the petitioner's appeal of that decision on September 22, 2009. The matter is now 
before the AAO on a motion to reopen and a motion to reconsider. The motions will be dismissed, 
the previous decision of the AAO will be atlirmed, and the petition will remain denied. 
On motion, the petitioner states that he now understands the "high standard of excellence" 
required and that it has been difficult to obtain some of the evidence because he is currently in 
the United States. On motion, the petitioner submitted the following documentation: 
I. A brief; 
2. Copies of his degree and license with translation; 
3. A professional qualification certificate with translation; 
4. Membership information printed from the internet and requirements for the China 
Association of Acupuncture and Moxibustion; 
5. A of the petitioner's membership card for the and 
with translation; 
6. printed from the internet about the 
7. A certificate for the petitioner from the with 
translation; 
8. Copies of three 
9. A letter from Prof. 
10. A letter from 
II. A letter from 
12. Photographs of the petitioner's patients; 
13. A certificate from the International Exhibitions Ideas Inventions Innovations, Nuernberg 
2002 with translation; 
14. A photograph of the petitioner; 
IS. Information printed from the internet about 
16. A Silver Medal certificate for the petitioner from ••• 
17. A letter services supervisor written 
18. An Award certificate for the petitioner from 
21. A letter 
University ietterrlca,i: 
22. A letter from 
_and 
letterhead; 
•••• Medical 
23. ~uncture license for the petitioner for the state of California dated August 28, 
2009. 
A motion to reopen must state the new facts to be provided and be supported by affidavits or 
other documentary evidence. 8 C.F.R. § 103.5(a)(2). Based on the plain meaning of "new," a new 
--Page 3 
fact is found to be evidence that was not available and could not have been discovered or presented 
in the previous proceeding. 1 
A review of the evidence that the petitioner submits on motion reveals no fact that could be 
considered "new" under 8 C.F.R. § 103.5(a)(2). All evidence submitted was previously available 
and could have been discovered or presented in the previous proceeding. The petitioner's motion is 
not an opportunity for the petitioner to correct his own defects in the record such as insufficient 
translations. The AAO notes that some of the evidence submitted on motion is duplicative of 
previously submitted evidence such as patent . . award information, and letters 
from individuals who previously submitted letters It is further noted that 
the petitioner has submitted evidence with this motion that was originally requested by the director 
in a request for additional evidence dated June 27, 2008. Matter of Soriano 19 I&N Dec. 764 (BrA 
1988), held that a petitioner may be put on notice of evidentiary requirements by regulations, 
written notice such as a request for additional documentation or a notice of intent to deny, or an oral 
request at an interview. As the petitioner was previously put on notice and provided with a 
reasonable opportunity to provide the required evidence, the evidence submitted on motion will not 
be considered "new" and will not be considered a proper basis for a motion to reopen. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. 
Doherty, 502 U.S. 314, 323 (1992)(citing INS v. Abudu, 485 U.S. 94 (1988». A party seeking to 
reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current 
motion, the petitioner has not met that burden. The motion to reopen will be dismissed. 
In the motion to reconsider, the petitioner reiterates the same arguments made in the original 
appeal. A motion to reconsider must 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 (USCIS) policy. 8 C.F.R. § 103.5(a)(3). 
A motion to reconsider contests the correctness of the original decision based on the previous 
factual record, as opposed to a motion to reopen which seeks a new hearing based on new or 
previously unavailable evidence. See Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised 
earlier in the proceedings. Rather, the "additional legal arguments" that may be raised in a 
motion to reconsider should flow from new law or a de novo legal determination reached in its 
decision that may not have been addressed by the party. Further 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 decision. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in 
1 The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just 
discovered, found, or learned <new evidence> .... " WEBSTER'S II NEW RIVERSIDE UNIVERSITY 
DICTIONARY 792 (1984)( emphasis in original). 
Page 4 
the initial decision or must show how a change in law materially affects the prior decision. See 
Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991). 
In this case, the petitioner failed to support his motion with any legal argument or precedent 
decisions to establish that the decision was based on an incorrect application of law or USeIS 
policy. The motion to reconsider will be dismissed. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion to reopen and the motion to reconsider are dismissed, the decision of the 
AAO dated September 22, 2009, is affirmed, and the petition remains denied.