dismissed EB-1A Case: Art

(b)(6)
DATE: 
OCT 2 9 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachu setts Ave .• N.W., MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETlTION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) ofthe Immigration and Nationality Act; 8 U.S .C. § 1153(b)(I)(A) 
ON BEHALF OF PETITIONER : 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1-2908) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/fo•·ms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R . § 103.5. Do not file a motion directly with the AAO . 
Thank you, 
A brJJlJ Y/[;t(___./ 
r Ron Rosenberg 
( Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal of that 
decision on October 19, 2012; and dismissed a subsequently filed motion to reopen and motion to 
reconsider on April 18, 2013. The matter is now before the AAO on a second motion to reopen. 
The motion will be dismissed, the previous decision of the AAO will be affirmed, and the petition 
will remain denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(l)(iii) requires that the 
motion must 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 proceeding and, if so, the court, nature, date, and 
status or result of the proceeding." The regulation at 8 C.F.R. § 103.5(a)(4) requires that "[a] motion 
that does not meet applicable requirements shall be dismissed." Counsel did not submit a statement 
regarding whether the validity of the decision of the AAO has been or is subject of any judicial 
proceeding. 
Notwithstanding the above, in part 3 of Form I-290B, Notice of Appeal or Motion, counsel states: 
Additional evidence & brief will be submitt [sic] within 30 days due to previous 
counsel's response to the incorrect [illegible]. Previous counsel responded to denial 
from December 7, 2011, as opposed to the denial from appeal on October 19, 2012. 
We respectfully request additional 30 days to submit evidence in support of the 
instant motion to reopen .· 
Counsel dated the motion on May 15, 2013. United States Citizenship and Immigration Services 
(USCIS) received counsel's additional evidence on July 19, 2013. As indicated in the AAO's prior 
decision on motion, although the regulation at 8 C.F.R. § 103.3(a)(2)(vii) allows for limited 
circumstances in which a petitioner can supplement an already-submitted appeal, this regulation 
applies only to appeals, and not to motions to reopen or reconsider. There is no analogous regulation 
which allows a petitioner to submit evidence after a motion has already been filed. A motion must 
meet the regulatory requirements of a motion to reopen or reconsider at the time it is filed; no 
provision exists for USCIS to grant an extension for supplemental documents on motion. 
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 fact is 
found to be evidence that was not available and could not have been discovered or presented in the 
previous proceeding. 1 Motions for the reopening of immigration proceedings are disfavored for the 
same reasons as ate 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)). 
1 
The word "new" is defined as "I. Having existed or been made for only a short time ... 3. Just discovered, found, or 
learned <new evidence > .... " Webster's New College Dictionary , (3d Ed 2008). (Emphasis in original). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
In its previous decision on motion, the AAO found that the petitioner focused primarily on the 
director's decision and failed to address the specific findings of the AAO's dismissal of the 
petitioner's appeal. The AAO stated that it only considers arguments and evidence relating to the 
grounds underlying the AAO's most recent decision and that prior counsel's opportunity to contest 
the director's findings was the previously filed appeal. Additionally, the AAO found that the 
petitioner's motion failed to meet the requirements of a motion to reopen or motion to reconsider. 
In support of the current motion, counsel submits copies of prior counsel's previously submitted 
briefs and documentation; despite his statement in Part 3 of Form I-290B, counsel did not submit a 
brief addressing the current motion. In addition, counsel submitted several photographs, an affidavit 
executed by regarding the petitioner's artwork, and a letter from 
President of the 
A review of the evidence that counsel submits on motion reveals no fact that could be considered 
"new" under 8 C.F .R. § 103 .5( a)(2). Counsel does not explain why the evidence was previously 
unavailable and could not have been submitted earlier. The petitioner was afforded at least three 
different opportunities to submit this evidence: at the time of the original filing of the petition on 
October 12, 2010, in response to the director's request for additional evidence on July 27, 2011, and 
at the time of the filing of the appeal on January 6, 20 12. 
Moreover, the accompanying captions to the photographs reflect 2013 dates. Similarly, 
letter appears to reflect that the petitioner became a member of the society after the filing 
of the petition, and the petitioner never previously claimed membership with the society. A motion 
to reopen is not a forum to raise arguments that could have previously been raised. Further, while a 
motion to reopen must be supported by affidavits or other documentary evidence, the documentation 
must be about events occurring before or at the time of the filing of the petition. Eligibility must be 
established at the time of filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak , 14 I&N Dec. 45, 
49 (Regl. Commr. 1971 ). A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That 
decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981 ), that we cannot 
"consider facts that come into being only subsequent to the filing of a petition." !d. at 176. 
The petitioner failed to submit any evidence on motion that reveals a fact that could be considered 
under 8 C.F.R. § 103.5(a)(2). 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reopen is dismissed , the prior decisions of the AAO are affirmed, and 
the petition remains denied.