dismissed EB-1A Case: Arts

(b)(6)
DATE: OCT 0 3 2013 
IN RE: Petitioner: 
B.eneficiary: 
u;s, l)ep~rtm~ll~ of.Jioilleland .security 
U.S. Citizenship and Immigra~ioJ:J Services 
Office of Administrative Appeals 
20 Ma:;sachuse.tts Ave., N.W., Ms 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER FILE: 
PETITION:· Immigrant Petitiqnfcir 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)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCfiONS: 
.Enclosed please find the decision of the Administrative Appeals Office (AAO) in your c~se. 
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 rnotjol1 to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motio_il (Form J.:290B) 
within 33 qays of the date of . this decision. Please review. the Form I-290B iiisttilcti()ns a~ 
http://www.usds.g~~(forms for the latest information on fee, filing location, and other requiteillents. 
See also 8 C.F.R. § HJ3.5. Do not file a rD,ot.i()n directly with the AAO. 
Thank you, 
,)J}JU).dnrJv . 
f)~~~ R,osenberg . 
. Chief, Administrative Appeals Office 
www.nscis.gov 
(b)(6) NON-PRECEDENT DECISION 
Page :2 
DISCUSSION: The Director, Texas S~rvice Center; denied the immigrant visa petition. The 
Administrative Appeals Office (AAO) dism:issed a subsequent appeal and reaffirmed that decision 
on 
motion. The petitioner then filed a second motion, which the AAO d.ismissed. Subsequently, the 
petitioner filed a third QWtion, which the AAO again dismissed. The matter is_ now befor~ the AAO 
on a fourth motion to reopen. The motion will be dismissed, the previous decision ofthe AAO will 
be affirmed, and the petition will remain denied. 
According to 8 C.ER. .§ 103.5(a)(Z), a wot_ion to reopen must state the new facts to be provided in the 
reopened proceeding and be supported by affidavits or other documentary evidence. Motions for the 
reopening of immigration proceedings are disfavored for the same reasons a.s are petitions for rehearing 
and motions for a. new trial on the basis ·of newly discovered evidence. INS v. Doheny, 502 U$. 314, 
323 (l992)(citing INS v. Abudu, 485. U.S .• 94 (1988))~ A party seeking to reopen a proceeding bears a 
"hea'Vy burden.'' INS v. Abudu, 485 U.S. at 110. . · · 
The petitioner seeks. classification a.s a.11 employment-based immigrant pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(l)(A), as an alien 
of extraordinary ability in the arts.1 The implementing regulation at 8 C.P.R. § 204.5(h)(3) states that 
an alien can establish sustained national or international acclaim through evidence of a one-tiine 
achievement of a major, internationally recognized award. Absent the receipt of such art award, the 
regulation outlines ten categories of Specific objective evidence. 8 C.F.R. § 204.5(h)(3)(i) through (x). 
The petitioner must submit qualifying evidence under at least three of the ten regulatory categpries of 
evidence to establish t.be basic eligibility requirements. The director found that the petitioner had failed 
to satisfy the antecedentregulatory requirement of three categories of evidence. 
; 
In the May 24, 2011 decision dismissing the petitioner's appeal, the AAO upheld the di_rector's 
detetniination that the petitioner had fa:Ued to establish that she meets at least thre.e of the regulatory 
categories of evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). the AAO determined 
that the petitioner's evidence had met the category of evidence a:t 8 C.F.R. § 204.5(b)(:3)(vli). The 
AAO specifically a:nd thoroughly discus~ed the petitioner's remaining evidence arid detetin:ined thCI.t 
she failed to establish eligibility for the membership criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(li), the published material criterion pursuant to the regulation at 8 C.P.R. 
§ 204.5(h)(3)(iii), the original contributions of major significance criterion pursuant to the regulation 
at 8 C,F.R. § 204.5(h)(3)(v), the high salary criterion pursuant to the regulation at 8 C:F.R. 
§ 204.5(h)(3)(ix), and t.he commercial successes in the perfotniing arts criterion pursuant to t.I:re 
regulation at 8 C.P.R. § 204.5(h)(3)(x). Thus, the AAO concluded that the petitioner had failed to 
satisfy the antecedent regulatory requirement of three categories of evidence. 
The petitioner filed her first motion to reopen on July 6, 2011. On June 29, 2012, the AAO dismissed 
that motion as untimely and for not meeti.,J.g all of the requirements of a motion. _ 
The petitioner filed her second motion to reopen on July 31, 2012. The petitioner's second motion 
failed to offer arguments a:nd evidence relating to the grounds underlying the AAO's June 29, 2012 
1 According to Form 1-94; Arrival-Departure Record, the petitioner was last admitted to the Unit(!d States on March 3, 
2007 as an F-1 non_imroigrant student. 
(b)(6) NON-PRECEDENT DECISION 
Page 3 
decision. Specifically, the petitioner failed to demonstrate that her motion filed on July 6, 2011 wa.s 
timely apd that it met the requirements of a motion to reopen. As the petitioner failed to show that the 
AAO .erred in its dismissal of her first motion, the MO concluded that there were no grounds to 
reopen the proceeding and dismissed the second motion oil December 21, 2012. In addition, the AAO 
explained why the evidence S\lbmitted in support of the second motion failed to satisfy the antecedent · 
regulatory requirement of three categories of evidence. 
The petitioner [JJ.ed her third motion to reopen on January 22, 2013. The petitioner asserted (hat she 
met the categories of evidence at 8 C.F.,R. § 204.5(h)(3)(lii) and (v) and she submitted further 
evidence pertaining to those categories. The petitioner, however, failed to <:lemonstrate that the 
AAO's December 21, 2012 decision dismissing hei Second motion to reopen was in error. In 
add_ition, the doc\lr:nentation submitted in support of the third motion did not reveal any fact that 
could be considered '.'new" under 8 C.F.,R. § l03.5(a)(2). Accordingly, the AAO dismissed that 
motion on June 20, 2013. . · . . 
The petitioner filed the instant motion to reopen. on July 19, 2013. in Part 3 of the Forin h290B, 
Notice of Appeal or Motion~ the. petitioner states: '~I included _Form I-797C from lmmigration which 
.. sbow [sic] ~hat my first motion has been sent on time - Jtirte .24, 2011, and Immigration Services sent · 
the application back and gave me more time to correct small error.'; the petitioner submits Fotni I-
797C, Notice of Action, dated Jurte 30, 2011, indiCatiQg that the petittoner's Form i-29013 was 
rejected as it had ''not been fully completed" and instructing her to "complete the application fully.;' 
See 8 C,F.R. § 10J.Z(i3.)(7)(i) a_mJ (iii) (indicating that a benefit request that is not executed, meaning 
"fully completed," may be rejected and will not retain a filing date). · 
A motion to reopen must state the new facts to be provided artd 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 
evidence that Was not available and could not have been discovered or presented in the previous 
proceeding.2 A review of the Form I-797C and of the petitioner's statements with the instant motion 
reveals no fact that could be considered "new'' under 8 C.F.R. § 103.5(a)(2). 
Regardless, in order to ptopetly file a motion to reopen, the regulation at 8 C.F.R. § 103.5(a)(1)(i) 
provides th~t the petitioner must file the motion within 30 days of tbe decision. The petitioner's 
first motion, after its proper completion arid resubniission, was teceived by U.S. Citizenship and 
Inunigration Services on J\llY 6, 2011, or 43 days after the AAO's appellate decision was issued. In 
addition, that first motion was unaccoro.p@.jed by facts or evidenc~ that could be considered ''new" 
under 8 C.F.R. § 103.5(a)(2) and that established her eligibility at <the time of filing. See 8 C.F.R. 
§§ 1032(b)(1), (12); Matter of Katigbak, 14 I&N De.c. 45, 49 (R,eg'l Comm'r 1971). Lastly, the 
pet_itioner' ~ first motion did not contain the statement about whether or not the validity of tbe 
unfavorable decision was the ~object of any judiCial proceeding as required . by the regillation at 8 
C.F.R. § 103.5(a)(1)(iii)(C) .. Accordingly, the first motion was .dismissed not o~ly as unt!Qtely filed, 
biJ.t'al.so for not II1eeti11,g aU of the requirements of a motion. 
2 The word "new" is defmed as "I. having existed or been made for only a short tim~ ... 3. Just di~vered, found, or learned 
<new evidence> .... " WEBSTER'S NEW COLlEGE DICTIONARY, (3d Ed 20Q8). (Emphasis in original). 
(b)(6) N,ON~PRECEDENT DECISION 
Page 4 . 
In a July 15, 2013 letter accompanying the instant motion, the petitioner further states: 
l submitted evidence to prove th~t the newspapers and magazines where my articles and 
articles about me were published are in'dee() lnajor or professional media outlets. 
I would like to give an explanation why I did not submit this evidence earlier. 
ln 2008-2009 eviqence as to which newspapers and magazines are niajot and ptofessi'onal in 
such countl'ies as Russia, 13elarus, and Japa.:n was h<lrd t() discover on the Internet.. But the 
Internet's teach and depth in the years since then have expand~cl dJ~atica:lly, and it is now 
possible to find and read articles from newspapers and magazines in any country and to 
gauge their importance. This resource w:as not available to the lawyers whom I cons.ulted iJJ 
20Q$. When (askecl th~lll how to prov~ for example that the Japanese newspapers and 
ue major, they did noOmow and (ldvised me that this issue was something . 
tha.tlmmigta.tion Services had nevyr raised before . 
. l believe that I established that I meet at leaSt three of the tegOlatory categories of evid~nce 
pursuant fo regulations in 8 C.FJ~. § 204.5(h)(3). 
The petitioner's instant motion addresses the elements of the May 24, ZOl1 decision dismissing her 
appeal and of the June 29, 2.012 decision dismissing her first motion. With regard to the ins.tantrilotion, 
the AAO will oply GO.Il$ider a.rgy,ments @d eviciei1ce·relating to the grounds underlying the AAO's most 
recent decision. The matter presently before the AAO is not the May 44, 2011 ~nd June 29, 2012. 
decisions, but the June 2.0, '2.013 dismissal of thb' petitioner' s third motion to reopen. The petitioner 
· niu.st overcorn~ the J~_ ne 20. 2013 dtsmi_s_sal o( her · third mod on before the AAO will revisit the. 
merits of any e~rlier decision. The petitioner has not done so in this proceeding. The submitted 
state~ents and Form l-797C do not point to specific errors irt the AAO's most recent decision dated. 
JYc~e 20, 2013. · FlJr.tl!~nnore, the documentation submitted on motion reveals no fact that c.ould be 
consjdereq "new" under 8 C.P.R.§ 103.5(a)(2) • 
. The regulation at 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not meet appUc~ble 
requirements shalL be dismissed:'' Accordingly, the motion will be dismissed, and the previop_s 
deci~ioJ:ls of tb.~ director aJ}d the AAO will not be disturbed. 
ORDER: 
. . . ~ 
The motion to reopen is dismissed, the AAO'$ June ~Q, 2013 decision is affirmed, and 
the petition remains denied.