dismissed EB-1A Case: Business

DATE: OFFICE: TEXAS SERVICE CENTER 
NOV L :J 2012 
IN RE: Petitioner: 
Beneficiar\': 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service:. 
Adrnilli,,[r:II;\(' /\ppl':lis Ofl"icl' (,\Am 
20 Mas:-,acilu:-,cIlS Ave .. N.\V., .\1~ 2()')() 
W'I."hinglon, DC 2(b2'!-2U')[j 
u.s. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Pel ilion for Alien Worker as an Alien of Extraordinary Ahility Pursuant to 
Sel'lilll] 2(1.,(11)( I)(A) "Ithe Immigration and Nationality Act; t\ USc. § I 153(h)(1 )(A) 
ON I3EHALF OF PETITIONER: 
INSTRUCTIONS: 
Encl"sed 1'1",,, lind Ihe decision 01 the Administrative Appeals Olfice in y"ur case. All 01 the 
documents rcl;Hed to thi~ matter have heen returned to the office that originally decided your case. Pkasc 
ht.: advist.:d that any !"urtht.:r inquiry that you might have concerning your case must he made to thai dffice. 
If you believe the i\i\O inappropriately applied the law in feaching its decision, Of you have additional 
information that y'(lU wish to have considered, you may file a motion to reconsider Of a motion to reopen 
in accordancl' \\lith thl' instructions on Form 1-290U, Notice of Appeal Of Motion, with a fcc of $630. The 
srecilic requirements 1m filing such a mlltilln can he found at K CER. § lO3.5. Do not file any motion 
directly with the AAO. PIcase he aware that R CF.R. § 103.5(a)(1)(i) requires any motion to he filed 
\\ ithin J() day:-- of lhl' dl'ci~ion that lhe motion seeks to reconsider or reopen. 
Thank you, 
ROll Rosenberg 
Acting Chief. Administrative Appeals Office 
www .. usci-s.gov 
Pagl: :2 
nISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition on March 15, 2011. The Administrative Appeals Office (AAO) dismissed the 
petitioner's appeal of that decision on July 11,2012. The matter is now before the AAO on a 
motion to reopen and motion to reconsider. The motions will be dismissed, the previous decision 
of the AAO will he affirmed, and the petition will remain denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(I )(iii) requires that the 
motion must be "[a]ceompanied 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. 
~ Hl).5(a)(") requires that "I a 1 motion that does not meet applicable requirements shall be 
dismissed. In this case, the petitioner failed to suhmit a statement regarding if the validity of the 
decision of the A;\O has been or is subject of any judicial proceeding. As such, the motions 
must be dismissed pursuant to the regulation atS CF.R. § 103.5(a)(4). 
Notwithstanding the above, in the decision of the AAO dismissing the petitioner's original 
appeal, the AAO specifically and thoroughly discussed the petitioner's evidence and found that 
the petitioner failed to establish that he meets a single one of the regulatory criteria pursuant to 
the regulation at t\ C.F.R. * 204.5(h)(3). 
On motion, counsel submitted a brief which generally reasserts previous claims and additional 
evidence. 
A motion to reopen must state the new facts to be provided and be supported by affidavits or 
other documentary evidence. t-: 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. 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. ~ IOJ.5(a)(2) and, therefore, cannot be considered a proper basis 
for a motion to reopen. 
On motion, counsel a~Sl:rt:-. lh~lt a "dccbration" !1"Ulll which :-,l~llc~ thlt 
she "ha[ s 1 read and seen the article" which appeared in "Entrepreneur Magazine Philippines," is 
"evidence" of published material about the petitioner. 
", 
I The \\ord "I1C\V" is defincd as "1. hJving existed or been made for only a short time ... 3. Just discovered, found, or 
learned <lIn1' c\'idcllcc 
migill;d). 
WI.IlSTI'R·S II Nl'w RIVI'RSIIlI' U~IVI'RSITY DICIIONARY 792 (J YX4 )(emphasis in 
Page .3 
Th~ r~gulation at S C.F.R. ~ IOJ.2(b)(2) provilks: 
SIl/JlI1illillg\('(()/u!lIrr evilimeL' llwl affidavit.l. (i) General. The nlln·exist~nce or 
other unavailability of required evidence creates a presumption of ineligibility. If a 
required document, such as a birth or marriage certificate, does not exist or cannot 
be obtained, an applicant or petitioner must demonstrate this and submit secondary 
evidence, such as church or school records, pertinent to the facts at issue. If 
secondary evidence also does not exist or cannot be obtained, the applicant or 
petitioner must demonstrate the unavailability of both the required document and 
relevant secondary evidence, and submit two or more affidavits, sworn to or 
affirmed by persons who are not parties to the petition who have direct personal 
knowledge of the ~vent and circumstances. Secondary evidence must overcome the 
unavailability of primary evidence, and affidavits must overcome the unavailability 
of both primary and secondary evidence. 
Where the regulations require specific, objective evidence of achievements, such as published 
material, the primary evidence would be copies of the articles themselves, Affidavits attesting to 
publications, therefore, would need to "overcome the unavailability of both primary and secondary 
evidence." The submitted "declaration" does not satisfy the requirements above and, therefore, the 
petitioner is presumed ineligible pursuant to S C.F.R. § IOJ.2(b)(2). As a result. this cannot be 
considered new evidence. 
All of the r~maining submitted evidence relates to achievements that postdate the filing date of the 
original petition on March 11, 2010. Eligibility must be established at the time of filing. 
Therefore, the AAO will not consider these items as evidence to establish the pelition~r' s 
eligibility. S C.F.R. ~~ 103.2(b)(I), (12); Maller of Katifibak, 14 I&N Dec. 45, 49 (Reg'l 
COlTIm'r 1971). A petition cannot be approved at a future date after the petitioner becomes 
eligible undera new set of facts. Malt('Toflzllll1mi, 221&N Dec. 169, 175 (Comm'r I 99S). That 
decision further provides, citing Maller oIBardollille, III I&N Dec. 114 (BIA 1981), that U.S. 
Citizenship and Immigration Services (USCIS) cannot "consider facts that come into being only 
subsequent to the tiling of a petition." Id. at 176. 
As stated above, a review of the evidence that the petitioner submits on motion reveals no fact 
relating to achievelllents predating the filing of the petition that could be considen:d "n~\\" under 8 
C.r.R. ~ 103.5(a)(2). Therefore, the documents cannot be considered a proper basis for a Illotion 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 I'. 
f)o/wr/I', 502 U.S. 314. 323 (1992)( citing INS v. A/mdll, 485 U.S. 94 (l91l8)). A party seeking to 
re(lp~n a proceeding hears a "heavy hurden." INS v. Abuc/u, 4R5 U.S. at 110. With the current 
motion, the petitioner has not met that burden. The motion to reopen Will be dismissed. 
Page -\. 
A motion to recon,ider 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. tl C.F.R. § 103.5(a)(3). A motion to reconsider conte,ts 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. 3YY. 403 (BIA lYlJ 1). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier 
in the proceedings. See Matter o{Medrw1O. 20 I&N Dec. 216.220 (BIA IlJlJO. 1991). Rather. the 
"additional k[!al ar[!uments" tbat lllay be raised in a motion to reconsilkr should no" li'()lll ne\\ lel\\ 
or a de 1101'0 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. Malter of O-S-G-, 24 I&N Dec. 56, 5tl (BIA 2(06). 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. Id. at 60. 
The motion to reconsider does not allege the application of precedent to a novel situation, or that 
there is ne\\ precedent or a change in law that alleets the AAO's prior decision. As noted above. 
a motion to ft'consider must include specific allegations as to how the AAO erred as a matter of 
fact or law in its prior decision, and it must be supported by pertinent legal authority. Because 
counsel has failed to raise such allegations of error in his motion to reconsider, the AAO will 
dismiss the motion to reconsider. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 2Y1 
of the Act. N U.S.c. ~ I3fl I. Here, the petitioner has not sustained that burden. 
ORDER: The Illation to reopen and the motion to reconsider are dismissed, the decision of the 
AAO dated lulv I L 2() 12 is affirmed. and the petition remains denied.