dismissed EB-1A Case: Athletics

Identifying data deleted to 
prevent clearly unwarranted 
invasion ofpersonaJ privacy 
PUBLIC COPY 
DATE: JUl 1 3 2012 OFFICE: TEXAS SERVICE CENTER 
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 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(h)(I)(A) of the Immigration and Nationality Act, 8 U.s.c, § 1153(b)(1)(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 helieve 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 not file any motion 
directly with the AAO. Please be aware that 8 c'F.R. § 103.5(a)(I)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Y\2?~ 
V~~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on August 3, 2009. On appeal, the Administrative Appeals Office (AAO) found that the 
petitioner did not meet his burden of establishing eligibility for the benefit sought and dismissed his 
appeal on June 23, 2010. The matter is now before the AAO on a motion to reopen. The motion 
will be dismissed. The previous decision of the AAO will be affirmed, and the petition will remain 
denied. 
I. Requirements of a Motion 
The regulation at 8 C.F.R. § 103.5(a)(1 )(iii) informs the public of the filing requirements for a 
motion and provides in pertinent part: 
A motion shall be submitted on Form 1-2908 and may be accompanied by a brief. It must be: 
(A) In writing and signed by the affected party or the attorney or representative of record, if any; 
(8) Accompanied by a nonrefundable fee as set forth in § 103.7; 
(C) Accompanied 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; 
(D) Addressed to the official having jurisdiction; and 
(E) Submitted to the office maintaining the record upon which the unfavorable decision was 
made for forwarding to the official having jurisdiction. 
A party seeking to reopen a proceeding bears a heavy burden and "must state the new facts to be 
provided in the reopened proceeding 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 evidence that was not 
available and could not have been discovered or presented in the previous proceeding. See Matter of 
Singh, 24 I&N Dec. 331, 334 (BIA 2(07). Motions to reopen 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. 94,108 (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." Abudu, 485 at 107. Based on its discretion, "the INS [now the U.S. 
Citizenship and Immigration Services (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 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. 
Page 3 
While the petitioner claims to be filing a motion to reopen, the AAO notes that a motion to 
reconsider must state the reasons for reconsideration and be supported by any pertinent precedent 
decisions to establish that the previous decision was based on an incorrect application of law or 
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 of 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. 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 of 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. 
In the instant motion, the petitioner fails to submit a statement indicating if the validity of the AAO's 
June 23, 2010 unfavorable decision has been or is the subject of any judicial proceeding pursuant to 
8 C.F.R. § 103.5(a)(1)(iii)(C). The regulation at 8 C.F.R. § 103.5(a)(4) requires that "[a] motion that 
does not meet applicable requirements shall be dismissed." Accordingly, the instant motion must be 
dismissed pursuant to 8 C.F.R. § 103.5(a)(4) without regard to the claims contained within the 
motion. 
II. Eligibility for the Classification Sought 
Notwithstanding this fundamental defect in the petitioner's motion, the AAO will review the filing 
to see whether it meets the other requirements of a motion. The petitioner seeks classification as an 
"alien of extraordinary ability" in athletics, as a kettlebell (girevoy or girya) trainer, pursuant to 
section 203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(1)(A). 
The director determined that the petitioner had not established the sustained national or international 
acclaim necessary to qualify for classification as an alien of extraordinary ability. 
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)(I)(A)(i) of the 
Act; 8 C.F.R. § 204.5(h)(3). 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)-(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 its June 23, 2010 decision, the AAO dismissed the petitioner's appeal, concluding that he had 
failed to meet at least three of the ten regulatory criteria under the regulation at 8 C.F.R. 
§ 204.S(h)(3), and, in the final merits determination, that he had failed to demonstrate that he has 
sustained national or international acclaim or that he is within a small percentage at the very top of 
the field of kettlebell trainers. See 8 C.F.R. § 204.S(h)(3). The AAO specifically and thoroughly 
discussed the criteria implicated by the evidence the petitioner submitted, including the prizes or 
awards for excellence criterion under 8 C.F.R. § 204.5(h)(3)(i), the membership in associations 
criterion under 8 C.F.R. § 204.S(h)(3)(ii); the published material about the alien criterion under 
8 C.F.R. § 204.S(h)(3)(iii); the participation as a judge criterion under 8 C.F.R. § 204.S(h)(3)(iv); the 
original contributions of major significance criterion under 8 C.F.R. § 204.S(h)(3)(v); and the 
leading or critical role criterion under 8 C.F.R. § 204.5(h)(3)(viii). 
In support of the instant motion to reopen and reconsider, counsel has filed a tw~tter and the 
following documents: (I) a translation of the petitioner's diploma from the_ College of 
Physical Culture and Sports, dated June 28, 1985, and (2) a translation of the petitioner's diploma of 
young specialist from Kherson State University, dated June 6, 2005. Translations for both diplomas 
were previously submitted when the petitioner filed the petition on June 23, 2008. The translations 
were originally provided on a "New York Business Center" letterhead and were notarized by _ 
_ on June 5, 2008. The translations filed on appeal are provided on a "1st Translation 
Center" letterhead and are notarized by July 9, 2010. In his two-page letter, 
counsel fails to explain the submission of a for the two diplomas. The AAO notes 
that although the two translations provided on appeal are formatted differently from the translations 
provided in June 2008, the contents are the same. 
After a careful and thorough review of the record, the AAO dismisses the petitioner'S motion, 
finding that he has not shown that a motion to reopen is warranted based on previously unavailable 
evidence. Even if the petitioner had indicated that the filing also constituted a motion to reconsider, 
the AAO would find that the petitioner has also failed to show that a motion to reconsider is 
warranted based on errors in the AAO's June 23, 2010 decision. 
With regard to the prizes or awards for excellence criterion under the regulation at 8 C.F.R. 
§ 204.S(h)(3)(i), counsel states in his two-page letter that the petitioner's "achievements have been 
recognized in the field, as he has received several awards and recognitions." He further asserts that 
the petitioner "is presenting copies of awards and confirmation of substantial achievements in his 
fields [sic 1." Counsel does not assert that the petitioner is submitting "new" evidence, as defined 
above, or explain how the petitioner's awards are nationally or internationally recognized. 
With regard to the membership in associations criterion under the regulation at 8 C.F.R. 
§ 204.5(h)(3)(ii), counsel states in his two-page letter that the petitioner "is a member of several 
professional organizations in Ukraine, Latvia and the U.S. which deal in the [k ]ettlebell athletic 
field, the [petitioner] is an accomplished trainer." The plain language of the regulation at 8 C.F.R. 
§ 204.S(h)(3)(ii) states that the alien must be a member of an association that requires outstanding 
Page 5 
achievements of its members as judged by national or international experts. On motion, counsel 
makes no mention of the requirements for admission to membership or the judges of admission to 
those memberships. 
Counsel has not challenged the AAO's findings relating to the published material about the alien 
criterion under the regulation at 8 C.P.R. § 204.5(h)(3)(iii), the participation as a judge criterion 
under the regulation at 8 C.P.R. § 204.5(h)(3)(iv), or the leading and critical role criterion under the 
regulation at 8 C.P.R. § 204.5(h)(3)(viii). In fact, counsel has not referenced any of these criteria in 
his two-page letter. 
With regard to the original contributions of major significance criterion under the regulation at 
8 C.F.R. § 204.5(h)(3)(v), counsel states that the petitioner "won numerous competitions and also 
trained students who won both national and international competitions." Counsel further asserts that 
the petitioner "received compensation and [b]onuses form [sic] his students' winnings." Counsel 
does not address the AAO's conclusion that the petitioner's talent as a competitor and trainer are not 
"original" or acknowledge that the regulation at 8 C.P.R. § 204.5(h)(3)(ix) requires evidence of a 
high salary or significantly high other remuneration in relation to others in the field. 
In the instant motion, counsel fails to state new facts or provide any previously unavailable evidence 
in support of his assertion that the petitioner meets any of the criteria. As such, the AAO finds that a 
motion to reopen is not warranted. See 8 C.F.R. § 103.5(a)(2). In fact, counsel states: "we rely upon 
the initially submitted evidence." 
Moreover, in the instant motion, counsel fails to state any reason for reconsideration. Counsel 
makes no assertion that the AAO's June 23, 2010 decision contained erroneous facts or was based 
on an incorrect application of law or USeIS policy. As such, a motion to reconsider is not 
warranted. See 8 C.F.R. § 103.5(a)(3); Matter of Cerna, 20 I&N Dec. at 403. The AAO finds that in 
filing the instant motion, counsel is submitting, in essence, the same arguments presented on appeal 
and is seeking reconsideration, but he has not alleged any error in the prior AAO decision. This 
assertion is not a valid basis for reconsideration of the AAO's June 23, 2010 decision. See Matter of 
O-S-G-, 24 I&N Dec. at 58. 
Finally, counsel's mere statement in his two-page letter that the petItIOner is eligible for the 
employment-based immigrant visa, without providing any legal support establishing that the AAO's 
June 23, 20 \() decision was decided in error, does not require the AAO to conduct a full analysis of 
all the criteria counsel claims the petitioner meets. See Desravines v. United States Att 'y Gen., No. 
08-14861,343 F. App'x 433, 435 (11th Cir. 2009) (finding that issues not briefed on appeal by a pro 
se litigant are deemed abandoned); Tedder v. F.M.c. Corp., 590 F.2d 115, 117 (5th Cir. 1979) 
(deeming abandoned an issue raised in the statement of issues but not anywhere else in the brief). 
III. Conclusion 
Page 6 
Pursuant to the regulation at 8 C.F.R. § 103.5(a)(I), a motion must be accompanied by a statement 
indicating if the validity of the AAO's untilVorable decision has been or is the subject of any judicial 
proceeding. As the petitioner has failed to submit such a statement accompanying his motion to 
reopen and reconsider, the regulation at 8 C.F.R. § 103.5(a)(4) requires that the motion be dismissed. 
Moreover. the AAO finds that the petitioner has not met its "heavy burden" of showing that the 
instant motion to reopen should be granted, because the petitioner has not stated new facts to be 
provided in the reopened proceeding, nor has he sufficiently supported the new facts with affidavits 
or other documentary evidence. See 8 C.F.R. § 103.5(a)(2). Furthermore, the AAO finds that the 
petitioner has not shown that a motion to reconsider should be granted, because the petitioner has not 
stated any valid reason for reconsideration, nor has he sufficiently supported any reason for 
reconsideration with pertinent precedent decisions establishing that the AAO's June 23, 2010 
decision contained erroneous facts or was based on an incorrect application of law or USCIS policy. 
See 8 C.F.R. § 103.5(a)(3). Accordingly, the instant motion to reopen and reconsider will be 
dismissed. 
The burden of proof in visa petition proceeding 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 reconsider is dismissed. The decision of the AAO dated 
June 23, 2010 is affirmed, and the petition remains denied.