dismissed EB-1A Case: Arts

identifying data deleted to 
prevent clearly unwarr~nted 
invasion of personal pnv'K' 
PUBucCOPy 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Departm-ent of Homeland Securit)' 
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 
DatJ\PR 12 2011 
PETITION: 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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
. 'I ' J " • J ',I ,J ,Ii 1,",1"1'-./ ~{i./1.5 ••. /'",('V VlO' 
~ Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, _ Service Center, denied this employment-based 
immigrant visa petition on October 2, 2008. The Administrative Appeals Office (AAO) 
dismissed the petitioner's appeal of that decision on October 21,2009. 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 "ra]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.S(a)(4). 
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. § 
204.5(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. § 204.5(h)(3)(iv), the 
display criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(vii), and the commercial 
successes criterion pursuant to the regulation at 8 C.F.R. § 204.5(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). 
On motion, counsel argues that the petitioner meets an additional three criteria - the membership 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), the original contributions 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v), and the leading or critical role 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). In addition, counsel submitted 
documentary evidence that was submitted previously at the time of the original filing of the 
petition, in response to the director's request for additional evidence pursuant to the regulation at 
8 C.F .R. § and/or on We note that on motion, the submitted a 
letter from a letter from a 
and a copy of a membership 
card from 
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 
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). In addition, the petitioner failed to explain why the 
evidence was previously unavailable and could not have been submitted earlier. The petitioner has 
been afforded three different opportunities to submit this evidence: at the time of the original filing 
of the petition, in response to the director's request for additional evidence. 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. Furthermore. although the petitioner claims eligibility for three 
additional criteria on motion, he failed explain why the three criteria were never claimed previously 
or why he could not previously submit evidence pertaining to the three additional criteria. 
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 (I 992)(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. 
To support his request for a motion to reopen. counsel restates in general terms his prior 
arguments and asserts for the first time that the petitioner meets the criteria at 8 C.F.R. 
§§ 204.5(h)(3)(ii). (v). and (viii). These claims were not raised at any time in this proceeding. 
including on appeal. Counsel does not allege any factual or legal error in the AAO's prior 
decision on appeal, nor does he refer to new legal authority that materially affects his case. 
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). 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 o{Cerna. 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 
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 II NEW RlvmSIDL UNIVERSITY DICTIONARY 792 (1984)(emphasis in 
original). 
-Page 4 
the initial decision or must show how a change in law materially affects the prior decision. See 
Maller ()f Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991). 
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. Instead, counsel generally reiterates prior arguments and 
raises completely new legal arguments, which were not previously raised either before the 
director or on appeal, and which are based on the same factual record. See Matter of Medrano, 
supra. As noted above, a motion to reconsider must include specific allegations as to how the the 
AAO erred as a matter of fact or law in its prior decision, and it must be supported by pertinent 
legal authority. Because the respondent has failed to raise such allegations of error in his motion 
to reconsider, we will dismiss the 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. 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 October 21, 2009, is affirmed, and the petition remains denied.