dismissed EB-1A Case: Arts

(b)(6)
DATE: JAN 2 2 2013 Office: TEXAS SERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
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)(l)(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 apJ?lied 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 I-290B, Notice of Appeal or Motion; with a fee qf $630. The 
specific requirement,s for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
- directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the d~cision that the motion seeks to reconsider or reopen. 
Thank you, 
;::P-1£---
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
./ 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on September 27, 2011. The Administrative Appeals Office (AAO) dismissed· the 
petitioner's appeal of that decision on September 11, 2012. The matter is now before the AAO on a 
motion to reopen and a motion to reconsider. The motion to reopen will be dismissed. The motion to 
reconsider will be dismissed. Ultimately, the previous decision of the AAO will be affinned, and the 
petition will remain denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(1)(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. § 103.5(a)(4) requires 
that "[a] motion that does not meet applicable requirements shall be dismissed. In this case, the 
petitioner failed to submit a statement regarding if the validity of the decision of the AAO has been 
or is subject of any judicial proceeding. As such, the motions must be dismissed pursuant to the 
regulation at 8 C.F.R. § 103.5(a)(4). 
Notwithstanding the above, the AAO's September 11, 2012, decision dismissing the petitioner's 
original appeal concluded that the petitioner failed to establish she meets at least three of the 
regulatory criteria pursuant to the· regulation at 8 C.F.R. § 204.5(h)(3). The AAO specifically and 
thoroughly discussed the petitioner's evidence and determined 
that the petitioner failed to establish 
eligibility for the following criteria: 
• The awards criterion pursuant to the regulationat 8 C.F.R. § 204.5(h)(3)(i); 
• The membership criterion pursuant .to the regulation at 8 C.F.R. § 204.5(h)(3)(ii); 
• The published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii); 
• The judging criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iv), 
• The original contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v); 
• The artistic display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii); 
• The leading or critical role criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(viii); and 
• The comparable evidence provision pursuant tothe regulation at 8 C.F.R. § 204.5(h)(4). 
In fact, the AAO determined 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). On motion, counsel simply lists the previously 
submitted evidence and new evidence without addressing any of the AAO's specific concerns. 
(.· 
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, I 08 (1988)). "There is a 
strong public interest in bringing litigation to a close as promptly as is consistent with the. interest in 
giving the adversaries a fair opportunity to develop and present their respective cases." INS v. 
Abudu, 485 at 107. Based on its discretion, "[T]he [USCIS] has some latitude in deciding when to 
reopen a case. [USCIS] should have the right to be restrictive. Granting such motions too freely will 
(b)(6)
,. ,. 
Page 3 
permit endless delay of deportation by aliens creative and fertile enough to continuously produce 
new and material facts sufficient to establish a prima facie case." /d. at 108; · The result also 
needlessly wastes the time and efforts of the triers of fact who must attend to the filing requests. /d. 
A party seeking to reopen a proceeding bears a "heavy burden ." /d. at 110. With the current 
motion, the petitioner has not met that burden. 
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). The Board of 
Immigration Appeals (BIA) generally provides that a motion to reconsider asserts that at the time of 
the previous decision, an error was made. It questions the decision for alleged errors in appraising 
the facts and the law. The very nature of a motion to reconsider is that the original decision was 
defective in some regard. See Matter of Cerna, 20 I&N Dec. 399, 402 (BIA 1991). A motion to 
reconsider is based on the existing record and petitioners may not introduce new facts or new 
evidence relative to their arguments. 
Additionally, a motion to reconsider cannot be used to raise a legal argument that could have been 
raised earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). 
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 could 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. Matter o{O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). 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. /d. at 60. 
A motion to reopen proceedings, however, is a fundamentally different motion. Matter of Cerna, 
20 I&N Dec. at 402 (citing Sanchez v. INS, 707 F.2d 1523, 1529 (D.C.Cir.1983); Chudshevid v. INS, 
641 F:2d 780, 783 (9th Cir.1981)). It does not contest the correctness of (or simply request a 
reevaluation of) the prior decision on the previous factual record. Rather, a motion to reopen 
proceedings seeks to reopen proceedings so that new evidence can be presented and so that a new 
decision can be entered, normally after a further evidentiary hearing. Matter of Cerna, 20 I&N Dec. 
at 403. · 
In counsel's brief on motion, counsel requests a motion to reconsider or a motion to reopen the 
decision. 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 
(b)(6)
Page 4 
presented in the previous proceeding. 1 New evidence is considered to be material to the present case 
and not previously submitted. This "new" evidence is expected to convey new value or new meaning to 
the case. 
Regarding the motion to reopen, while the petitioner did submit new evidence on motion, each form 
of evidence postdates the petition filing date. A motion to reopen is designed to afford the petitioner · 
an opportunity to submit new evidence that may not have been available previously. It is not 
intended to allow the petitioner to improve upon the previously deficient evidence that failed to meet 
the clearly identified regulatory requirements. In addition, on motion· a petitioner m.ust still establish 
eligibility at the time of filing; a petition cannot be approved at a future date after the peti~ioner 
becomes eligible under a new set of facts. See 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971). Moreover, the AAO cannot "consider facts that come into 
being only subsequent to the filing of a petition." Matter of Izummi, 22 I&N Dec. 169, 176 (Assoc. · 
Comm'r 1998) (citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981)). Ultimately, in order to 
be meritorious in fact, a petition must meet the statutory and regulatory requirements for approval as 
of the date it was filed. Ogundipe v, Mukasey, 541 F.3d 257, 261 (41h Cir. 2008). The petitioner 
failed to demonstrate that the newly submitted evidence on motion was both (1) not available and 
could not have been discovered or presented in the previous proceeding and (2) relates to eligibility 
as of the date of filing. Therefore, the new evidence cannot be considered a proper basis for a 
motion to reopen. As a result, this evidence will not be considered. Regardless, the evidence relates 
to country conditions in Egypt rather than the petitioner's eligibility as an alien .of extraordinary 
ability, the benefit the petitioner sought through filing the Form 1-140 petition. 
Regarding the petitioner's motion to reconsider, thepetitioner failed to support the motion with any 
pertinent precedent decisions to establish that the decision was based on an incorrect application of 
law or USCIS policy in accordance with 8 C.F.R. § 103.5(a)(3). As stated above, counsel simply 
lists the previously submitted evidence. that the AAO already considered. Therefore, the petitioner 
has not filed a proper motion to reconsider. · 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.C. § 1361; Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 1988) (citing Matter of 
Brantigan, 11 I&N Dec. 493 (BIA 1966)). Here, the petitioner has not sustained that burden. 
Accordingly, the appeal will be dismissed. 
ORDER: The motion to reopen is dismissed. The motion to reconsider is dismissed. The decision 
of the AAO dated September 11, 2012, is affirmed, and the petition remains denied. 
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.)