dismissed EB-1A Case: Athletics Coaching

(b)(6)
DATE: MAY 1 0 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
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 
FILE: 
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 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.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 decision that the motion seeks to recon'>ider or reopen. 
Thank you, 
~(t[_ 
f--Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on April20 , 2009. The Administrative Appeals Office (AAO) summarily dismissed the appeal 
on November 9, 2009, reopened the matter on its own motion on March 16, 2010, and dismissed the 
appeal on its merits on September 16, 2010. On July 17, 2012, the AAO dismissed the petitioner's 
October 18, 2010 motion to reopen and reconsider and affirmed the AAO's prior decision on the merits. 
The matter is now before the AAO on a second motion to reopen or reconsider. 
Regarding motions to reopen or reconsider, 8 C.F.R. § 103.5(a)(1)(ii) states in relevant part: "The 
official having jurisdiction is the official who made the latest decision in the proceeding unless the 
affected party moves to a new jurisdiction." A motion must address the issues raised in the decision it 
seeks to reopen. See Matter of 0-S-G-, 24 I. & N. Dec. 56, 59 (BIA 2006) (holding that a motion on 
a reaffirmation must explain how the Board of Immigration Appeals erred in affirming the 
Immigration Judge's decision). The latest decision was the AAO's July 17, 2012 decision dismissing 
the initial motion to reopen and reconsider. Therefore, a successful motion must overcome the AAO's 
most recent decision. 
In addition, to properly file a motion, the regulation at 8 C.P.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. With the current motion, 
despite the AAO's citation of this requirement in its July 17, 2012 decision, the petitioner once again 
failed to submit a statement regarding whether the validity of the director's decision has been, or is, the 
subject of any judicial proceeding. The regulation mandates that this shortcoming alone requires U.S. 
Citizenship and Immigration Services (USCIS) to dismiss the motions. See 8 C.P.R. § 103.5(a)(4). 
Notwithstanding this omission, the motion 
The Form I-290B and the accompanying statement indicate that the current motion is a motion to 
reopen. Counsel, however, raises at least one claim of an incorrect application of law. Even if the AAO 
were to consider the filing a joint motion to reopen and reconsider, the motion would be dismissed. To 
the extent that the current motion is a motion to reconsider, 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 USCIS policy. 8 C.P.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). 
Moreover, 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 
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error in the prior decision. Matter of 0-S-G-, 24 I&N Dec. at 58. Instead, the moving party must 
specify the factual and legal issues that were decided in error or overlooked in the decision the 
motion seeks to reconsider or must show how a change in law materially affects the prior 
decision. /d. at 60. 
In the current motion, counsel raises largely the same assertions from the last motion. USCIS may 
dismiss a motion that repeats assertions USCIS has previous rejected. See Liu v. Gonzales, 439 F.3d 
109, 111 (2d Cir. 2006) citing Strata v. Ashcroft, 388 F.3d 651, 655 (8th Cir.2004); Ahmed v. 
Ashcroft, 388 F.3d 247, 250-51 (7th Cir.2004); Sswajje v. Ashcroft, 350 F.3d 528, 533 (6th 
Cir.2003). 
Counsel's new assertion of error relating to the AAO's most recent decision concerns the AAO's 
statement that, "the petitioner failed to show how the evidence submitted with the last motion relates 
to the facts as they were in November 2007." In the current motion, counsel maintains that the 
successes demonstrated by the 2009 and 2010 articles about the petitioner's athletes were the direct 
result of the training and coaching that the students received from the petitioner prior to the 2007 
filing date. The AAO finds no error in the prior determination to rely on Matter Katigbak, 14 I&N 
Dec. 45, 49 (Reg'l Comm'r 1971) and reject the 2009 and 2010 articles as new 
evidence. The 
petitioner must demonstrate his eligibility as of the filing date. See 8 C.F.R. §§ 103.2(b)(1), (12); 
Matter of Katigbak, 14 I&N Dec. at 49. In this matter, that means that he must demonstrate his 
sustained national or international acclaim as of that date. All of the case law on this issue focuses 
on the policy of preventing petitioners from securing a priority date in the hope that they will 
subsequently be able to demonstrate eligibility. Matter of Wing's Tea House, 16 I&N Dec. 158, 160 
(Reg'l Comm'r 1977); Matter of Katigbak, 14 I&N Dec. at 49; see also Matter of Izummi, 22 I&N 
Dec. 169, 175-76 (Assoc. Comm'r 1998) (citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981) 
for the proposition that USCIS cannot "consider facts that come into being onlysubsequent to the 
filing of a petition.") Consistent with these decisions, a petitioner cannot secure a priority date in the 
hope that his athletes will subsequently demonstrate athletic achievements based on his current 
guidance. 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). -
Counsel asserts that the petitioner submitted documentation regarding the petitioner's high salary 
throughout these proceedings but that USCIS did not contest this criterion in the July 17, 2012 
decision. In the July 17, 2012 decision, the AAO specifically concluded that the petitioner 
abandoned the salary criterion on appeal and therefore, the matter was not properly before the AAO 
on motion. In fact, neither the petitioner nor counsel previously raised this claim in the proceeding 
relating to the underlying petition that is the subject of this motion. Therefore, the petitioner's claims 
relating to the salary criterion are not properly before the AAO. See Matter of Medrano, 20 I&N 
Dec. at 220. 
Accordingly, the petitioner has failed to meet the requirements of a motion to reconsider. 
(b)(6)
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To the extent that the petitioner requests the current motion to be considered as a motion to reopen, 
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/NS 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. In this instance, the AAO has 
already considered and rendered a decision on a motion to reopen and reconsider that the petitioner 
submitted. The petitioner has failed to show in the current motion that the most recent AAO decision 
dismissing the first motion was erroneous. 
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. 1 The AAO dismissed the petitioner's previous motion largely because the 
petitioner failed to explain how the evidence was not available and could not have been discovered in 
the previous proceeding. The AAO further noted that counsel had not overcome the AAO's 
determination that the petitioner's accomplishments as an athlete, while not irrelevant, could not serve 
to establish his eligibility as a coach because they are separate areas of expertise. On motion, counsel 
simply reiterates that there is a correlation between athletics and coaching, a correlation the AAO never 
questioned. The AAO continues to find persuasive the reasoning in Lee v. I.N.S., 237 F. Supp. 2d 914 
(N.D. Ill. 2002)' (upholding a finding that extraordinary ability as a baseball player does not imply 
extraordinary ability in all positions or professions in the baseball industry such as a manager, 
umpire or coach). 
In the current motion, virtually all evidence relating to the underlying merits of the petition has been 
previously submitted and has already been considered and rejected in the last motion. The one item that 
counsel submits for the first time is a 20 12 article about one of the petitioner's athletes. As an initial 
matter, the record already includes evidence about or from that athlete in support of the petition. Hence, 
there is already evidence in the record indicating that the athlete in the article has benefitted from the 
petitioner's coaching. Thus, the 2012 article, while postdating the filing of the petition, also adds 
nothing new to the record of proceeding. 
Finally, the petitioner introduces documentation relating to his poor health in 2002, 2003, 2007 and 
2008, which allegedly precluded him from submitting a more complete visa petition at the time of 
filing. The petitioner's health in these years has no bearing on the petitioner's ability to submit 
evidence at the time of the appeal in 2009. 
1 The word "new" is defined as "1: having recently come into existence : RECENT, MODERN; 2a (1): having 
been seen, used, or known for a short time : NOVEL <rice was a new crop for the area> ." 
http://www.merriam-webster.com/dictionary/new, accessed on Aprilll, 2013. 
(b)(6)
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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. Accordingly, the motion will 
be dismissed. 
ORDER: The motion is dismissed . . The AAO's July 17, 2012 decision is affirmed, the AAO's 
September 16, 2010 decision is affirmed, and the petition remains denied.