dismissed EB-1A Case: Arts

(b)(6)
DATE: JUN 2 0 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immi gration Service: 
Admini strative Appeals Office (AAO) 
20 Massac husetts Ave., N. W., MS 2090 
Washingto n. DC 20529-2 090 
U.S. Citizenship 
and Immigration 
Services 
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: 
SELF -REPRESENTED 
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 I-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.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen . 
Thank you, 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www. uscis.gov 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center. The Administrative Appeals Office (AAO) dismissed a subsequent appeal 
and reaffirmed that decision on motion. The petitioner filed a second motion, which the AAO 
dismissed. The matter is now before the AAO on a third motion 
to reopen. The motion will be 
dismissed, the previous decisions of the AAO will be affirmed, and the petition will remain 
denied. 
According to 8 C.F.R. § 103.5(a)(2), a motion 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 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 (1988)). A party seeking to 
reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. 
The petitioner seeks classification as an 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 Congress set a very high benchmark for aliens of 
extraordinary ability by requiring through the statute that the petitioner demonstrate the alien's 
"sustained national or international acclaim" and present "extensive documentation" of the alien's 
achievements. See section 203(b)(1)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). U.S. Citizenship 
and Immigration Services (USCIS) and legacy Immigration and Naturalization Service (INS) have 
consistently recognized that Congress intended to set a very high standard for individuals seeking 
immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Cong., 2d Sess. 59 (1990); 56 
Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. I d. 
and 8 C.F.R. § 204.5(h)(2). The implementing regulation at 8 C.F.R. § 204.5(h)(3) states that an 
alien can establish sustained national or international acclaim through evidence of a one-time 
achievement of a major, internationally recognized award. Absent the receipt of such an 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 
categories of evidence to establish the basic eligibility requirements. 
In the May 24, 2011 decision of the AAO dismissing the petitioner's appeal, the AAO found that 
the petitioner had failed to establish that she meets at least three 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 at 8 C.F.R. § 204.5(h)(3)(vii). The AAO 
specifically and thoroughly discussed the petitioner's remaining evidence and determined that 
she failed to establish eligibility for 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 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 the commercial successes in the performing arts criterion 
1 
According to Form 1-94, Arrival-Departure Record, the petitioner was last admitted to the United States on March 
3, 2007 as an F-1 nonimmigrant student. 
(b)(6)
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pursuant to the regulation at 8 C.F.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 the motion as untimely and for not meeting the requirements of a motion to reopen. 
The petitioner filed her second motion to reopen on July 31, 2012. The petitioner's second motion 
failed to offer arguments and evidence relating to the grounds 
underlying the AAO's June 29, 2012 
decision. Specifically, the petitioner failed to submit evidence demonstrating that her motion filed 
on 
July 6, 2011 was timely and that it met the requirements of a motion to reopen. As such, the 
petitioner failed to meet the burden of establishing that the AAO's June 29, 2012 dismissal of her 
first motion was in error. As the petitioner's second motion failed to demonstrate that the AAO 
erred by dismissing her first motion, the AAO dismissed her second motion on December 21, 2012. 
In addition, the AAO explained why the evidence submitted in support of her second motion failed 
to satisfy the antecedent regulatory requirement of three categories of evidence. 
The petitioner filed the instant (third) motion to reopen on January 22, 2013. In the instant motion 
to reopen, the petitioner asserts that she meets the categories of evidence at 8 C.F .R. 
§ 204.5(h)(3)(iii) and (v) and she submits further evidence pertaining to those categories. 
With regard to the instant motion, the AAO will only consider arguments and evidence relating to 
the grounds 
underlying the AAO's most recent decision. The petitioner bears the burden of 
establishing that the AAO's December 21, 2012 dismissal of her second motion to reopen was 
itself in error. If the petitioner can demonstrate that the AAO erred by dismissing her second 
motion, then there would be grounds to reopen the proceeding. The petitioner has not done so in 
this proceeding. The submitted arguments and evidence do not point to specific errors in the 
AAO's most recent decision dated December 21, 2012. Accordingly, the motion is dismissed. 
Furthermore, 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. 2 
On motion, the petitioner submits the following documentation: 
1. Information about magazine from the website of the l 
2. Exhibition announcement for the petitioner's graphic works and paintings at the New 
York Public Library; 
3. Information about the Japanese newspapers 
2 
The word "new'' is defmed 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). 
(b)(6)
Page4 
4. A 2012 "Web Ranking" of "Newspapers in Belarus" printed from 
http://www.4imn.com and a "List of newspapers in Belarus" printed from Wikipedia; 
5. Information printed from 
from Belarus"; and 
6. An article purportedly published by 
its date and author are not identified. 
stating that is an "art magazine 
that mentions the petitioner, but 
A review of the evidence that the petitioner submits on motion reveals no fact that could be 
considered "new" under 8 C.P.R. § 103.5(a)(2). In addition, the petitioner has failed to explain 
why the evidence was previously unavailable and could not have been submitted earlier. Prior to 
filing her three motions, the petitioner had been afforded multiple different opportunities to 
submit evidence demonstrating her eligibility: at the time of the original filing of the petition, in 
response to the director's notice of intent to deny, and at the time of the filing of the appeal. A 
review of the evidence that the petitioner 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. Accordingly, for this additional reason, the motion is dismissed. 
ORDER: The motion to reopen is dismissed, the AAO's December 21, 2012 decision is 
affirmed, and the petition remains denied.