dismissed EB-1A Case: Arts

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DATE: OFFICE: TEXAS SERVICE CENTER 
JUN 222012 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETlTlON: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the 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 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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form 1·290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do nol file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(J)(i) requires any motion to be filed 
within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
.:b~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition on April 27, 2009. The Administrative Appeals Office (AAO) dismissed the 
petitioner's appeal of that decision on March 28, 2011. 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 affirmed, and the petition will remain denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.S(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." Furthermore, the regulation at 8 C.F.R. 
§ 103.S(a)(4) requires that "[a] motion that does not meet applicable requirements shall be 
dismissed. However, counsel failed to submit a statement regarding if the validity of the 
decision of the AAO has been or is subject of any judicial proceeding. 
Notwithstanding the above, in the decision of the AAO dismissing the petitioner's original 
appeal, the AAO found that the petitioner failed to establish that he meets at least three of the 
regulatory criteria pursuant to the regulation at 8 C.F .R. § 204.S(h)(3). The AAO specifically 
and thoroughly discussed the petitioner's evidence and determined that the petitioner failed to 
establish eligibility for the awards criterion pursuant to the regulation at 8 C.F.R. 
§ 204.S(h)(3)(i), the published material criterion pursuant to the regulation at 8 C.F.R. 
§ 204.S(h)(3)(iii), the judging criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(iv), 
the original contributions criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(v), the 
artistic display criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(vii), the leading or 
critical role criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(viii), the high salary 
criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(ix), and the commercial successes 
criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(x). In fact, the AAO found that the 
petitioner failed to establish eligibility for any of the criteria pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3). Moreover, the AAO determined that the petitioner submitted non-certified 
English language translations and foreign language documents without any English language 
translations that did not comply with the regulation at 8 C.F.R. § 103.2(b)(3). Furthermore, the 
AAO determined that the petitioner failed to submit primary evidence, or evidence that primary 
and secondary evidence do not exist or cannot be obtained, as required pursuant to the regulation 
at 8 C.F.R. § 103.2(b)(2). 
On motion, instead of contesting the specific findings in the AAO's decision, counsel essentially 
submitted the same brief and documentary evidence that was previously submitted on appeal. 
Moreover, while not previously claimed, counsel asserts that the AAO should review the 
documentation as comparable evidence pursuant to the regulation at 8 C.F.R. § 204.S(h)(4) and 
claims that the petitioner is also eligible for the membership criterion pursuant to the regulation 
at 8 C.F.R. § 204.S(h)(3)(ii). 
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.S(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. I 
In the case here, counsel submitted no new documentary evidence to demonstrate that the petitioner 
meets at least three of the regulatory categories of evidence pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) - (x). Instead, counsel simply resubmitted evidence that was thoroughly discussed 
and analyzed in the AAO's prior decision. 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) and, therefore, cannot 
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 (l992)(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. 
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 
oflaw 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 afCerna, 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 
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, counsel makes the same arguments that were made at the time of the original appeal 
regarding the awards criterion, the published material criterion, the jUdging criterion, the original 
contributions criterion, the artistic display criterion, the leading or critical role criterion, and the 
commercial successes criterion, and counsel makes new claims of eligibility under the 
membership criterion and comparable evidence. The motion to reconsider does not allege that 
the issues, as raised on appeal, involved the application of precedent to a novel situation, or that 
there is new precedent or a change in law that affects the AAO's prior decision. Counsel has 
I 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 II NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (l984)(emphasis in 
original). 
Page 4 
also not asserted any new facts or provided new evidence for consideration that would convert 
the motion to reconsider into a motion to reopen. Instead, counsel generally reiterates prior 
arguments and raises completely new legal arguments, which were not previously raised before 
the director or on appeal, and which are based on the same factual record. As noted above, a 
motion to reconsider must include specific allegations as to how the AAO erred as a matter of 
fact or law in its prior decision, and it must be supported by pertinent legal authority. Because 
counsel has failed to raise such allegations of error in the motion to reconsider, the AAO will 
deny the motion to reconsider. See also Rehman v. Gonzales, 2006 WL 688992 (7th Cir. 2006) 
(No. OS 2846) (the court found that reconsideration depended on something new, if not 
necessarily new factual developments, then at least new arguments showing that the IJ or BIA 
overlooked something important; the petitioner did not have any new arguments and was merely 
rehashing old ones.) 
It is noted that counsel failed to address the AAO's findings regarding the high salary criterion, 
the non-certified English language translations, and the failure to submit primary evidence of 
eligibility. The AAO, therefore, considers these issues to be abandoned. See Sepulveda v. u.s. 
Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 200S); Hristov v. Roark, No. 09-CV-27312011, 
2011 WL 471188S at *1, *9 (E.D.N.Y. Sept. 30, 2011) (the court found the plaintiffs claims to 
be abandoned as he failed to raise them on appeal to the AAO). 
It is further noted regarding comparable evidence, the regulation at 8 C.F.R. § 204.S(h)(3) 
provides that evidence of sustained national or international acclaim "shall" include evidence of 
a one-time achievement or evidence of at least three of the ten regulatory categories of evidence 
to establish the basic eligibility requirements. The ten categories in the regulations are designed 
to cover different areas; not every criterion will apply to every occupation. For example, the 
criterion at 8 C.F.R. § 204.S(h)(3)(vii) implicitly applies to the visual arts, and the criterion at 8 
C.F.R. § 204.S(h)(3)(x) expressly applies to the performing arts. The AAO further 
acknowledges that the regulation at 8 C.F.R. § 204.S(h)(4) provides "[i]fthe above standards do 
not readily apply to the [petitioner's] occupation, the petitioner may submit comparable evidence 
to establish the [petitioner's] eligibility." It is clear from the use of the word "shall" in 8 C.F.R. 
§ 204.S(h)(3) that the rule, not the exception, is that the petitioner must submit evidence to meet 
at least three of the regulatory criteria. Thus, it is the petitioner's burden to explain why the 
regulatory criteria are not readily applicable to his occupation and how the evidence submitted is 
"comparable" to the objective evidence required at 8 C.F.R. § 204.S(h)(3)(i)-(x). 
The regulatory language precludes the consideration of comparable evidence in this case, as 
there is no indication that eligibility for visa preference in the petitioner's occupation as a dancer, 
choreographer, and teacher cannot be established by the ten criteria specified by the regulation at 
8 C.F.R. § 204.S(h)(3). In fact, as indicated in this decision, counsel claims that the petitioner 
meets at least nine of the ten criteria at the regulation at 8 C.F.R. § 204.S(h)(3). An inability to 
meet a criterion, however, is not necessarily evidence that the criterion does not apply to the 
petitioner's occupation. Where an alien is simply unable to meet or submit documentary 
evidence of three of these criteria, the plain language of the regulation at 8 C.F.R. § 204.S(h)(4) 
Page 5 
does not allow for the submission of comparable evidence. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
ofthe 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 March 28, 2011, is affirmed, and the petition remains denied.