dismissed EB-1A Case: Administrative Services

U.S. Citizenship 
and Immigration 
Services 
In Re: 18671058 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : AUG . 31, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, an administrative services manager, seeks classification as an individual of 
extraordinary ability . This first preference classification makes immigrant visas available to those 
who can demonstrate their extraordinary ability through sustained national or international acclaim 
and whose achievements have been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center initially denied the petition and subsequently affirmed 
his decision on motion, concluding that the Petitioner had not satisfied any of the initial evidentiary 
criteria, of which she must meet at least three . We dismissed the Petitioner's subsequent appeal of the 
denial. The Petitioner then filed a combined motion to reopen and motion to reconsider , which we 
also dismissed. The matter is now before us on a second combined motion to reopen and reconsider. 
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 both motions. 
I. MOTION REQUIREMENTS 
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 establish that 
the decision was based on an incorrect application oflaw 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). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reconsideration, a 
petitioner must not only meet the formal filing requirements (such as submission of a properly 
completed Form I-290B, Notice of Appeal or Motion, with the correct fee), but also show proper cause 
for granting the motion . We cannot grant a motion that does not meet applicable requirements . See 
8 C.F.R. § 103.5(a)(4). 
II. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to individuals with extraordinary 
ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim and whose achievements have been recognized in the field through 
extensive documentation. The term "extraordinary ability" refers only to those individuals in "that 
small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The 
implementing regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner 
can demonstrate sustained acclaim and the recognition of their achievements in the field through a 
one-time achievement (that is, a major, internationally recognized award). If the petitioner does not 
submit this evidence, then they must provide sufficient qualifying documentation that meets at least 
three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards, 
published material in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
III. ANALYSIS 
As a preliminary matter, we note that by regulation, the scope of a motion is limited to "the prior 
decision." 8 C.F.R. § 103.5(a)(l)(i). The issue before us is whether the Petitioner has submitted new 
facts to warrant reopening or established that our decision to dismiss the previous motion was based on 
an incorrect application oflaw or users policy. 
A. Prior AAO Decisions 
We dismissed the Petitioner's appeal after determining that she did establish that she meets any of the 
initial evidentiary criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 1 In the previous motion to reconsider, we 
observed that the Petitioner restated and described the evidence she submitted under the one-time 
achievement and the evidentiary criteria relating to awards, memberships, published material, judging, 
original contributions, and leading or critical role. 2 Although the Petitioner contended that we erred 
1 On appeal, the Petitioner argued eligibility for the one-time achievement under 8 C.F.R. § 204.5(h)(3), and, in the 
alternative, that she met eight criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), relating to lesser nationally or internationally 
recognized awards or prizes, membership in associations, published material in major media, judging, original 
contributions of major significance in the field, scholarly articles, perfonnance in a leading or critical role for organizations 
or establishments that have a distinguished reputation, and high salary. See 8 C.F.R. § 204.5(h)(3)(i), (ii), (iii), (iv), (v) 
(vi), (viii), and (ix). We noted that the Director determined that the Petitioner claimed, but did not establish, that she meets 
the criterion related to display at 8 C.F.R. § 204.5(h)(3)(vii), and that on appeal the Petitioner did not contest the Director's 
finding that she does not meet this criterion or offer additional arguments. 
2 We noted that the Petitioner's prior motion to reconsider did not address our decisions regarding the scholarly articles 
and high salary criteria. 
2 
in our dismissal of the appeal, she did not attempt to identify or rebut any specific errors in our decision 
or establish how we had misapplied the law or USCIS policy in adjudicating her appeal, as required 
for a motion to reconsider. We noted that the Petitioner did not even mention our appellate decision 
and address our specific conclusions, including our determinations on the Director's combined motion 
decision. We further noted that our appellate decision thoroughly analyzed and explained why every 
piece of evidence and arguments addressed in the motion did not meet the regulatory requirements. 
We concluded, therefore, that the Petitioner did not demonstrate that we erred in either misapplying 
law or policy or failing to address prior arguments or evidence. For these reasons, we dismissed the 
motion to reconsider. 
With respect to the prior motion to reopen, the Petitioner submitted the following new evidence under 
the corres ondin criteria: 1 a certificate from dated December 8 2011 (awards); 2) a letter 
from the L-~---~------------..-------------'- ........... .i..s;d January 3, 2006 
(memberships); 3) letters from .__ _____ __,and dated December 28, 
2012 and January 8, 2003, respectively (judging); 5) letters from~ ____ __,andl I I I dated March 11, 2017 and July 18, 2017, respectively (leading or critical role); and 6) 2005 
Filipino income tax documentation (high salary). We determined that, as the Petitioner did not submit 
these documents before the Director, either at the time she filed the petition or in response to the 
Director's request for evidence, we would not consider these claims and documents in our adjudication 
of the motion. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (providing that if "the 
petitioner was put on notice of the required evidence and given a reasonable opportunity to provide it 
for the record before the denial, we will not consider evidence submitted on appeal for any purpose" 
and that "we will adjudicate the appeal based on the record of proceedings" before the Chief); see also 
Matter of Obaigbena, 19 I&N Dec 533 (BIA 1988). We found that, although the documents pre-date 
her initial filing, the Petitioner did not explain why she did not present these documents before the 
Director. Accordingly, we refused to consider this evidence to determine the Petitioner's eligibility 
under the applicable criteria for the first time on motion. As such, we dismissed her motion to reopen. 
B. Judicial Proceeding Statement 
The regulation at 8 C.F.R. § 103.5(a)(l)(iii) requires the motion to be "[a]ccompanied by a statement 
about whether or not the validity of the unfavorable decision has been or is the subject of any judicial 
proceedings and, if so, the court, nature, date, and status or result of the proceeding." The Petitioner, 
however, did not include the required statement. Therefore, the Petitioner's motions do not meet the 
applicable requirements. See 8 C.F.R. § 103.5(a)(4). 
C. Motion to Reconsider 
The Petitioner maintains that we erred in dismissing the previous motion to reconsider but she does 
not specifically address our reasons for dismissal, nor does she attempt to identify or rebut any specific 
errors in that decision. 3 A motion to reconsider must specify the factual and legal issues that were 
decided in error or overlooked in our prior decision. Cf Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 
3 The Petitioner's present motion to reconsider does not address our decisions regarding the one-time achievement and the 
evidentiary criteria relating to published material and original contributions. 
3 
2006) . 4 ("[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 . 
The moving party must specify the factual and legal issues raised on appeal that were decided in error 
or overlooked in our initial decision . . . . ") Here, the Petitioner has not specifically addressed our 
most recent decision or stated any reasons for reconsideration of that decision. Nor does she contend 
that our prior decision was based on an incorrect application of law or policy, or that the decision was 
incorrect based on the evidence of record at the time of that decision . As such, the motion does not 
meet all the requirements of a motion to reconsider, and 8 e.F .R. § 103.5(a)(4). 
Further, we acknowledge that the Petitioner's claim on motion includes a criticism of users policy 
guidance related to the adjudication of extraordinary ability immigrant petitions. 5 This criticism 
includes a rejection of users' reliance on Kazarian as a basis for conducting a multi-part analysis 
that includes a final merits determination . The Petitioner does not articulate a claim that we misapplied 
this policy in our adjudication of her prior motion to reconsider. Rather , she maintains that we erred 
in our adjudication of the prior motion by adhering to Kazarian and applicable users policy and 
asserts we should have looked to the reasoning in Buletini v. INS, 860 F. Supp. 1222 (E.D. Mich . 
1994), a pre-Kazarian district court decision, and other pre-Kazarian federal district court decisions 
in adjudicating her prior motion. 6 Because we have already concluded that the Petitioner has not 
demonstrated that we misapplied the law or users policy in concluding that she did not meet the 
initial evidentiary requirement of three criteria under 8 e.F.R. § 204.5(h)(3)(i)-(x), we reserve this 
issue. 7 
In sum, although the Petitioner has submitted a brief in support of the current motion , she does not 
contend that we misapplied the law or USeIS policy in dismissing the previous motion to reconsider. 
The Petitioner 's statement in support of the current motion does not directly address the conclusions we 
reached in our immediate prior decision or provide reasons for reconsideration of those conclusions. 
D. Motion to Reopen 
As noted, a motion to reopen must state new facts and be supported by documentary evidence. 8 e.F.R. 
§ 103.5(a)(2). With respect to the prior motion to reopen, the Petitioner maintains that we erred in not 
considering the aforementioned new evidence offered under the criteria relating to awards , 
memberships, judging, leading or critical role, and high salary. 
4 As noted in our prior decision , O-S-G- relates to motion s to reconsider before the Board of Immigration Appeals , 
governed by 8 C.F.R. § 1003.2(b)(l) , which states: "A motion to reconsider shall state the reasons for the motion by 
specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority ." These 
requirements are fundamentally similar to those found at 8 C.F.R. § 103.5(a)(3), and therefore the same logic applies . 
5 See 6 USCIS Policy Manual F.2, https ://www.uscis.gov /policy-manual /volume-6-part-f-chapter-2. 
6 We note that in contrast to the broad precedential authority of the case law of a United States circuit court we are not 
bound to follow the published decision of a United States district court in matters arising within the same district. See 
Matter of K-S-, 20 I&N Dec. 715 (BIA 1993). Although the reasoning underlying a district judge 's decision will be given 
due consideration when it is properly before us, the analysis does not have to be followed as a matter of law. Id. at 719. 
7 See INS v. Bagamasbad , 429 U.S. 24, 25-26 (1976) (stating that, like courts, federal agencies are not generally required 
to make findings and decisions unnecessary to the results they reach) . However , as already discussed, the Petitio ner's 
assertion that we should have relied on Buletini and other pre-Kazarian federal district court decisions rather than Kazarian 
and binding USCIS policy guidance is not persua sive. 
4 
In support of the present motion, the Petitioner explains why she did not present these documents 
before the Director. In her brief, she asserts that these documents "could have been presented in the 
initial stage but because of the string [sic] typhoon that hit the Philippines at the time or before the 
initial filing, these documents were not previously available" and "these new evidences were hardly 
located and presented in the midst of COVID-19 pandemic." In addition, in an unsworn statement the 
Petitioner provides that the new documents "were unavailable during the initial submission for the 
reason that I have to ask my brother to dig and look into my old bunch of files in the garage." Here, 
however, we do not find that the Petitioner's new evidence overcomes our previous finding that she 
does not meet at least three of the criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
As it relates to the criterion for lesser nationally or internationally recognized prizes or awards for 
excellence in the field at 8 C.F.R. § 204.5(h)(3)(i), the Petitioner asserted on motion that she had 
received such an award, as demonstrated by a certificate fromc=] dated December 8, 2011. USCIS 
policy guidance provides that relevant considerations regarding whether the basis for granting the 
prizes or awards was excellence in the field include, but are not limited to, the criteria used to grant 
the prizes or awards, the national or international significance of the prizes or awards in the field, and 
the number of awardees or prize recipients as well as any limitations on competitors. 8 The award 
certificate indicates it was an "Award for Excellence given to [the Petitioner] recognizes leaders who 
share Te opplrtunity & mentor others to build their own successfolD business," and was conferred 
by an branch manager in I I Philippines. However, the certificate was not 
accompanied by any information regarding the award or the national or international recognition 
associated with it, such as news media articles or other relevant documentation. In addition, the 
Petitioner does not provide evidence demonstrating that mentoring others in building a successful 
I I business is in the same or an allied field of administrative services management, and therefore 
that this award was given for excellence in her field of endeavor. Therefore, this document does not 
overcome our previous finding that the Petitioner does not meet the criterion regarding lesser 
nationally or internationally recognized prizes or awards at 8 C.F.R. § 204.5(h)(3)(i). 
Regarding the membership criterion at 8 C.F.R. § 204.5(h)(3)(ii), in the Petitioner's prior motion she 
provided a letter froml I a coordinator with the I I dated January 3, 2006. D I I acknowledges the Petitioner's membership inl I which he indicates "helps our 
members become more effective on the job by teaching the human aspect of management via 
numerous career development forums and trainings." While this letter confirms that the Petitioner 
was a member of1 I and its mission, the record lacks documentation, such as bylaws, membership 
requirements, or other appropriate evidence, establishing that the organization requires outstanding 
achievements of its members, as judged by recognized national or international experts in their 
disciplines or fields. 9 For the reasons discussed, the Petitioner's additional evidence on motion does 
not demonstrate that she satisfies the regulatory requirements of the membership criterion at 8 C.F.R. 
§ 204.5(h)(3)(ii). 
8 See 6 USCIS Policy Manual F.2 appendix, https://www.uscis.gov/policy-manual/volume-6-part-f-chapter-2 (providing 
guidance on the review of evidence submitted to satisfy the regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x)) (indicating 
that an award limited to competitors from a single institution, for example, may have little national or international 
significance). 
9 Id. (providing an example of admission to membership in the National Academy of Sciences as a Foreign Associate that 
requires individuals to be nominated by an academy member, and membership is ultimately granted based upon recognition 
of the individual's distinguished achievements in original research). 
5 
As it pertains to the high salary criterion at 8 C.F.R. § 204.5(h)(3)(ix), in support of the Petitioner 's 
prior motion she submitted 2005 Filipino income tax documentation. The burden is on the Petitioner 
to provide appropriate evidence, including, but not limited to, geographical or position-appropriate 
compensation surveys and organizational justifications to pay above the compensation data, 
demonstrating that she meets this criterion. 1° Further, a petitioner working in a different country must 
be evaluated based on the wage statistics or corn arable evidence in that country. 11 Here the income 
tax documentation reflects that in 2005 paid the Petitioner a gross annual salary of P420,000 
while she was working in ------ Philippines. Therefore, appropriate evidence may be 
compensation surveys reflecting the wages for administrative service managers in the Petitioner's 
geographic area in the Philippines , or other appropriate materials. 
The Petitioner provided 2005 Fili ino income tax documentation for a colleague.I 
I l reflectin that received a gross annual salary of P_l_3_7_,4_0_0-.0-0_w_h-il~e 
working in _____ -Philippines , and an undated identification badge indicating her position as 
an administrative manager. The Petitioner claims that "due to my advanced level of expertise and 
extensive experience, I am grateful to have commanded a higher amount in salary compared to her." 
However, salary information obtained from only one individual does not reliably represent industry 
salaries. Without appropriate evidence of the average salary earned by administrative service 
managers in the Petitioner 's geographic area in the Philippines , the Petitioner has not provided 
documentation sufficient to establish whether she has commanded a high salary in relation to others 
in her field. Therefore, the Petitioner has not overcome our previous finding that she does not meet 
the regulatory criterion at 8 C.F.R § 204.5(h)(3)(ix). 
As discussed above, we find that the Petitioner's new evidence does not overcome our previous 
determination that she does not meet the regulatory criteria relating to awards, membership, or high 
salary. Although in the present motion the Petitioner also claims that she meets the criteria related to 
judging and leading or critical role, we need not reach these issues. We reserve them, as the Petitioner 
cannot meet the initial evidentiary requirement of three criteria under 8 C.F.R. § 204.5(h)(3).12 
IV. CONCLUSION 
For the reasons discussed, the Petitioner's motion to reconsider has not shown that our latest decision 
was based on an incorrect application of law or USCIS policy, and the evidence provided in support of 
the motion to reopen does not overcome the grounds underlying our previous decision. The motion 
to reopen and motion to reconsider will be dismissed for the above stated reasons. 
ORDER: The motion to reopen is dismissed . 
FURTHER ORDER: The motion to reconsider is dismissed . 
io Id. 
11 Jd. 
12 See Bagamasbad, 429 U.S. at 25-26 . 
6