dismissed EB-1A Case: Biological Engineering

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DATE: . JAN 2 3 2013 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 
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 oh 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 tile 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 reconsider or reopen. 
Thank you, 
~?I~ 
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on April 12, 2011. The
' Administrative Appeals Office (AAO) dismissed the petitioner's 
appeal on July 26, 2012. The matter is now before the AAO on a motion to reconsider, filed on August 
22, 2012. The motion will.be dismissed. The AAO's previous decision 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 filjng requirements for a 
motion and provides in pertinent part: 
A motion shall be submitted on Form I-290B 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; 
(B) 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. 
On motion, counsel states, "the validity of the [ AAO] decision in this case has not been the subject 
. to any judicial proceeding." 
II. 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 original decision was based on an incorrect application of 
law or United States Citizenship and Immigration Services (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 ). 
In addition, a motion to reconsider cannot be used to raise a legal argument that could have been 
raised earlier in the proceeding. 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 reconsid~r should 
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flow from new law or a de novo legal determination reached in the original decision that could not 
have been addressed by the party . Furthermore, 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 original decision. Matter of 0-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 original decision or must show how a change io law materially 
affects the prior decision . /d. at 60. 
A. Eligibility for the Classification Sought 
The petitioner seeks classification as an "alien of extraordinary ability" in the field of advance 
computation in biological engineering, pursuant to section 203(b )(1 )(A) of the hnmigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A). The director determined that the petitioner has not 
established the sustained national or international acclaim necessary to qualify for classification as an 
alien of extraordinary ability. The AAO affirmed and dismissed the petitioner's appeal. 
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). 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 its July 26, 2012 decision, the AAO dismissed the petitioner's appeal, concluding . that he failed to 
meet at least three of the ten regulatory criteria under the regulation at 8 C.F.R. § 204.5(h)(3), and 
thus failed to demonstrate that he has sustained national or international acclaim or that he is within 
a small percentage at the very top in the field of endeavor. See 8 C.F.R. § 204.5(h)(3). The AAO 
specifically and thoroughly discussed the criteria implicated by the evidence in the record, including 
the prizes or awards criterion under 8 C.F.R. § 204.5(h)(3)(i); the membership in associations 
criterion under 8 c.F:R.. § 204.5(h)(3)(ii); the participation as a judge criterion under 8 C.F.R. 
§ 204.5(h)(3)(iv) ; the original contributions of major significance criterion under 8 C.F.R. 
§ 204.5(h)(3)(v); the authorship of scholarly article criterion under ·s C.F.R. § 204.5(h)(3)(vi); the 
leading or critical role criterion under 8 C.F.R. § 204.5(h)(3)(viii); and the high salary or other 
significantly high remuneration criterion under 8 C.F.R. § 204.5(h)(3)(ix). 
On motion, counsel contests the AAO 's findings relating to three criteria: the prizes or awards 
criterion at 8 C.F.R. § 204.5(h)(3)(i); the contributions of major significance criterion at 8 C.F.R. 
§ 204.5(h)(3)(v) and the leading or critical role criterion at 8 C.F.R. § 204.5(h)(3)(viii). In support 
of the motion to reconsider, counsel files a three-page brief, dated August 17, 2012, accompanied by 
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no additional supporting documents. Counsel has failed to show that a motion to reconsider is 
warranted in this case. 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes 
or awards for ,excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). · 
On motion, counsel asserts that "the AAO may not have given proper consideration to [the 
petitioner'sl numerous awards and research grants, including the 
as well [as] numerous research grants from the and 
[sic] as further evidence of [the . petitioner's] 
extraordinary ability and sustained academic excellence." Counsel requests "the AAO to re­
examine" the evidence in the record as relating to this criterion. 
Counsel has not stated the reasons for reconsideration nor has counsel provided any support, 
including pertinent precedent decisions, showing that the AAO's July 26, 2012 decision was based 
' on an incorrect application of law or USCIS policy. See 8 C.F.R. § 103.5(a)(3). Indeed, the AAO 
discussed this criterion - making specific, references to the petitioner's abovementioned 
· accomplishments - and its many reasons for concluding that the petitioner failed to meet this 
criterion in its prior decision. Counsel's request that "the AAO [] re-examine" the evidence and his 
mere statement that the petitioner meets this criterion, without specifically addressing any of the 
AAO's reasoning or providing any legal or factual basis to challenge the AAO's adverse decision, 
does not trigger the AAO to again conduct a full analysis of the criterion. 
It is well established that 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 original decision . Matter of 0 -S-G-, 24 I&N Dec. at 58. Instead, the petitioner must specify the 
factual and legal issues raised on appeal that were decided in error or overlooked in the July 26, 
2012 decision or must show how a change in law materially affects the prior decision. /d. at 60. 
The record does not support counsel's speculation that the AAO failed to properly consider relevant 
evidence in its prior decision. In addition, counsel has failed to demonstrate anyerror in the AAO's 
prior decision. 
Accordingly, the AAO dismisses the petitioner's motion to reconsider as relating to this criterion. 
Evidence of the alien 's original scientific, scholarly, artistic, athletic, or business-related 
contributions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
On motion, counsel asserts that the AAO "may have overlooked a significant amount of weighty 
evidence that [the petitioner] is widely recognized as an extraordinary scientist who has made 
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original scientific contributions of major significance in his field.'' Counsel then points to the 
following evidence to support his assertion that the petitioner meets this criterion: (1) a reference 
letter from -
; (2) a reference letter from 
=------====== -== (3) a reference letter from 
( 4) a reference letter from 
(5) the petitioner's development of the (6) the 
petitioner's published work and frequency of its citations; and (7) the petitioner's awards and grants. 
Counsel requests that "the AAO reconsider its determination" as relating to this criterion. 
Other than speculating that the AAO "may have overlooked" evidence in the record, counsel has not 
stated the reasons for reconsideration nor has counsel provided any support, including pertinent 
precedent decisions, showing that the AAO's July 26, 2012 decision was based on an incorrect 
application of law or USCIS policy. See 8 C.F.R. § 103.5(a)(3). Indeed, the AAO discussed this 
criterion - making specific references to the abovementioned reference letters and the petitioner's 
achievements - and its many reasons for concluding that the petitioner failed to meet this criterion in 
its prior decision. Counsel's request that "the AAO reconsider its determination" arid his mere 
statement that the petitioner meets this criterion, without specifically addressing any of the AAO's 
reasoning or providing any legal or factual basis to challenge the AAO's adverse decision, does not 
trigger the AAO to again conduct a full analysis of the criterion. 
Moreover, it is well established that 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 original decision. Matter of 0-S-G-, 24 I&N Dec. at 58. Instead, the petitioner must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in the 
July 26, 2012 decision or must show how a change in law materially affects the prior decision. /d. at 
60. The record does not support counsel's speculation that the AAO overlooked relevant evidence in 
its prior decision. In addition, counsel has failed to show any error in the AAO's prior decision. 
Accordingly, the AAO dismisses the petitioner's motion to reconsider as relating to this criterion . 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that 
have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
On motion, counsel asserts that "[t]he AAO and USCIS have overlooked [the petitioner]'s critical 
and essential role that he· has played at the _ _ Specifically, counsel asserts 
that the petitioner "has served in a leading and ciitical capacity at the 
leading the University's research efforts in the field 
of advanced computation and bioengineering from 1998 and to the present, most recently in the 
position of fal ten.ured Associate Professor." Pointing to the petitioner's development of the 
and a reference letter from 
counsel contends that the petitioner meets this 
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criterion and requests "the AAO to re-examine the previously provided evidence" as relating to the 
criterion. 
Other than the unsubstantiated assertion that the AAO and USCIS "have overlooked" evidence in the 
record, counsel has not stated the reasons for reconsideration nor has counsel provided any support 
showing that the AAO's July 26, 2012 decision iwas based on an incorrect application of law or 
USCIS policy. See 8 C.F.R. § 103.5(a)(3). Indeed, as with the two previously discussed criteria, the 
AAO discussed the leading or critical role criterion - making specific references to the petitioner's 
development of the - - _ - reference letter and the petitioner's teaching 
position at the - and its reasons for concluding that the petitioner failed to 
meet this criterion in its prior decision. Counsel's request that "the AAO [] re-examine" the 
evidence and his mere statement that the petitioner meets this criterion, without specifically 
addressing any of the AAO's reasoning or providing any legal or factual basis to challenge the 
AAO's adverse decision, does not trigger the AAO to again conduct a full analysis of the criterion. 
It is well established that 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 original decision. Matter of 0-S-G-, 24 I&N Dec. at 58. Instead, the petitioner must specify the 
factual and legal issues raised on appeal that were decided in error or overlooked in the July 26, 
2012 decision or must 
show how a change in law materially affects the prior decision. Id. at 60. 
The record does not support counsel's assertion that the AAO and USCIS overlooked relevant 
evidence in its prior decision. In addition, counsel has failed to specify a:ny error in the AAO's prior 
decision. · 
Accordingly, the AAO dismisses the petitioner's motion to reconsider as relating to this criterion. · 
Ill. Conclusion 
The petitioner has not shown that the motion to reconsider should be granted, because he has not stated 
any valid reason for reconsideration, nor has he sufficiently supported any valid reason for 
reconsideration with pertinent legal precedent establishing that the AAO's July 26, 2012 decision 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 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 reconsider is dismissed. The AAO's July 26, 2012 decision is affirmed, and 
the petition remains denied.