dismissed EB-1A Case: Business

identifying data deleted to 
prevent clc:~+! 'Jnwarranted 
invasion ot pcrso;:al pnvacy 
PUBLIC COpy 
DATE: 
fEB 292011 
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)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(1)(A) 
ON BEHA.LF 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 I-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, c?~ S~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on June 18, 2009. On appeal, the Administrative Appeals Office (AAO) found that the 
petitioner did not meet its burden of establishing eligibility for the benefit sought and dismissed its 
appeal on August 19, 2010. The matter is now before the AAO on a motion to reopen and reconsider. 
The motion will be dismissed. The previous decision of the AAO will be affirmed, and the petition will 
remain denied. 
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 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 abollt 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. 
(Emphasis added.) 
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 2007). 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. Abudll, 
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." INS v. 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. 
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.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 proceeding. See Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990). 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. 
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 failed to submit a statement indicating if the validity of the 
AAO's August 19, 2010 unfavorable decision has been or is the subject of any judicial proceeding. 
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. 
Notwithstanding this fundamental defect in the petitioner's motion, the AAO will review the merits 
of the motion. In its August 19, 2010 decision, the AAO dismissed the petitioner's appeal of the 
Director's denial of the employment-based immigrant visa petition, concluding that the petitioner 
failed to establish that the beneficiary meets at least three of the ten regulatory criteria under the 
regulation at 8 C.F.R. § 204.5(h)(3), and that in the AAO's final merits determination, the petitioner 
failed to demonstrate that the beneficiary "has sustained national or international acclaim and that 
his ... achievements have been recognized in the field of expertise." See 8 C.F.R. § 204.5(h)(3). 
The AAO specifically and thoroughly discussed the criteria implicated by the evidence the petitioner 
submitted, including the membership in associations criterion pursuant to 8 C.F.R. § 204.5(h)(3)(ii); 
the published material criterion pursuant to 8 C.F.R. § 204.5(h)(3)(iii); the original contributions of 
major significance criterion pursuant to 8 C.F.R. § 204.5(h)(3)(v); the leading or critical role 
criterion pursuant to 8 C.F.R. § 204.5(h)(3)(viii); the high salary or other significantly high 
remuneration for services criterion pursuant to 8 C.F.R. § 204.5(h)(3)(ix); and the commercial 
successes criterion pursuant to 8 C.F.R. § 204.5(h)(3)(x). 
Pagc 4 
In support of the instant motion to reopen and reconsider, the petItlOner filed four additional 
documents. They are (l) the beneficiary's pay stub for the September 3, 2010 to September 9, 2010 
pay period, (2) the beneficiary's pay stub for the December 25, 2009 to December 31, 2009 pay 
. od, an undated and unsigned certificate 
Chapter of 2007 to 2008 presented to the beneficiary, noting that 
board member, and (4) an undated and unsigned president's award 
certificate Chapter of 2006 to 2007 presented to the beneficiary. Also, in its 
brief in support of the motion, the petitioner claimed that the beneficiary meets five of the ten 
regulatory criteria under 8 C.F.R. § 204.5(h)(3). The AAO will address each of the relevant criteria 
below. 
Documentation of the alien's membership in associations in the field for which class(fication 
is sought, which require outstanding achievements of their members, as judged by recognized 
national or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
As noted in the AAO's August 19,2010 decision, in its May 21,2009 response to the Director's 
Request for Evidence, the petitioner indicated that it "did not make a claim of extraordinary ability 
under subcategory two [pursuant to] 8 C.F.R. § 204.5(h)(3)(ii) ... and [the beneficiary] did not 
argue that his membership in __ should qualify under 8 C.F.R. § 204.5(h)(3)(ii)." 
Similarly, the petitioner, in it~ppeal to the AAO, made no argument that the 
beneficiary's membership in establishes that he meets this criterion. The petitioner, 
however, makes this argument in the ant motion. The AAO concludes that the petitioner has 
abandoned this issue, as it did not timely raise it on appeal. Sepulveda v. United States Att 'y Gen., 
401 F.3d 1226, 1228 n.2 (llth Cir. 2005); Hristov v. Roark, No. 09-CY-27312011, 2011 WL 
4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the United States District Court found the plaintiff's 
claims to be abandoned as he failed to raise them on appeal to the AAO). 
Even if the AAO were to conclude that the petitioner had not abandoned this issue, it nonetheless 
would conclude that the petitioner had not shown that the beneficiary meets this criterion. In the 
instant motion, the petitioner claimed that the beneficiary has been a member of 
five years. The petitioner further claimed that the beneficiary served on the 
Directors from 2006 to 2008 1 and received its president's award from 2006 to 2007. Along with the 
motion, the petitioner submitted: (1) an undated and unsigned certificate the_ Action Chapter 
of 2007 to 2008 presented to the beneficiary, noting that the beneficiar~ FNGLA board 
member, and (2) an undated and unsigned president's award certificate the __ Action Chapter 
of 2006 to 2007 presented to the beneficiary. The petitioner, however, has provided no explanation 
as to its failure to submit either of the two certificates when it responded to the Director's Request 
I It is unclear if the petitioner, in the instant motion, intended to claim that the beneficiary was a board member from 
2006 to 2008, or if it made a typographic error in the motion, because the undated and unsigned certificate notes that the 
beneficiary was a board member from 2007 to 2008, and there is no other evidence relating to the beneficiary's board 
membership from 2006 to 2007. 
Page 5 
for Evidence in May 2009 or when it appealed the Director's denial of visa petition in July 2009. In 
short, the petitioner has not established that the two unsigned and undated certificates constitute new 
evidence, such that it was not previously available or could not have been discovered or presented in 
the previous proceeding. See Matter of Singh, 24 I&N Dec. at 334. As such, the AAO declines to 
consider them. 
Even if the AAO were to consider these two certificates, it nonetheless would find them insufficient 
to show that the beneficiary meets the criterion under 8 C.F.R. § 204.5(h)(3)(ii). First, service on an 
association's board is not a membership in the association. Second, the two certificates do not show 
that the_requires outstanding achievements of its members, as judged by recognized national 
or international experts in their disciplines or fields. See 8 C.F.R. § 204.5(h)(3)(ii). Specific~ 
petitioner has not provided evidence indicating how someone becomes and/or remains a __ 
member. There is no evidence indicating who may join or remain a _member, or if the 
_ requires "ou . achievements" from of its members. The AAO notes that neither 
the June 6, 2008 letter from the _ nor the two 
undated and unsigned certificates s 
Accordingly, the AAO denies the petitioner's motion and reaffirms its finding that the petitioner has 
not provided documentation of the beneficiary's membership in associations in the field for which 
classification is sought, which require outstanding achievements of their members, as judged by 
recognized national or international experts in their disciplines or fields. See 8 C.F.R. 
§ 204.5(h)(3)(ii). 
Published material about the alien in professional or major trade publications or other 
major media, relating to the alien's work in the field for which classification is sought. Such 
evidence shall include the title, date, and author of the material, and any necessary 
translation. 8 C.F.R. § 204.5(h)(3)(iii). 
When the petitioner initially filed the employment-based immigrant visa petition, it claimed that the 
beneficiary meets the published material criterion under 8 C.F.R. § 204.5(h)(3)(iii). After the 
Director concluded otherwise, the petitioner appealed this issue to the AAO. In its August 19,2010 
decision, the AAO dismissed the petitioner's appeal, finding that the petitioner had not provided any 
published material about the beneficiary, relating to his work in the field of horticulture. The AAO 
further concluded that "[ s ]imply submitting articles that relate to the beneficiary's field, without 
documentary evidence reflecting published material about the beneficiary relating to his work, is 
insut1icient to meet the plain language of this regulatory criterion." As the petitioner did not raise 
any issue relating to the AAO' s August 19, 20 I 0 findings on the published material criterion under 
8 C.F.R. § 204.5(h)(3)(iii) in the instant motion, the AAO will not address it. The AAO's previous 
findings on the issue remain unchanged. 
Evidence of the alien's original scientific, scholarly, artlstlc, athletic, or business-related 
contriblltions of major significance in the field. 8 C.F.R. § 204.5(h)(3)(v). 
In the instant motion, the petitioner argued that the AAO, in its August 19, 2010 decision, failed to 
give "expert letters the weight they deserve to prove the beneficiary's original ... contributions of [] 
major significance in the field." The petitioner further claimed that the AAO "did not have a 
specific, cogent reason for finding each of the letters deficient," and argued that "when considered 
on the whole with the patents and other evidence, the petitioner has established the beneficiary's 
original business/scientific contributions of major significance in the field." The petitioner claimed 
in its motion that it "submitted several expert letters of reference." 
In its August 19, 2010 decision, the AAO reviewed all reference letters, and "cite[ d] representative 
examples of the benefici letters." the AAO decision 
cited letters written b 
co s 
Inconsistencies In record undermined the reliability of the petitioner's 
evidence. Specifically, in her March 8, 2008 letter,_ claimed that "as a result of [the 
beneficiary's] effort, involvement and extraordinary skills in his field," "11 patented plant's 
certificates [were] assigned and granted to [the petitioner.]" The petitioner's other evidence, 
however, clearly shows that the petitioner had filed five of the eleven patents with the U.S. Patent 
and Trademark Office in 1996 and 1997, before 1998, when the beneficiary began working either as 
the petitioner's part-time assistant grower, as claimed in the beneficiary's curriculum vitae, or as an 
intern, as claimed in March 9, 2008 letter. The petitioner has not explained how the 
beneficiary could have been involved with the filing of the five patents that predate his employment 
with the petitioner. The petitioner has provided no insights to this matter in the instant motion. 
Also, contrary . m relating to the beneficiary's involvement in eleven patents, none 
of the patent documents lists the beneficiary as the inventor. 2 Again, the instant motion is silent on 
this matter. As previously noted in the AAO's August 19, 2010 decision, the petitioner provided 
inconsistent documents and "it is incumbent upon the petitioner to resolve the inconsistencies by 
independent objective evidence. Attempts to explain or reconcile the conflicting accounts [or 
2 The AAO has previously stated that a patent is not necessarily evidence of a track record of success with some degree 
of int1uence over the field as a whole. Matter of New York State Dep't of Transp., 22 I&N Dec. 215, 221 n.7 (Comm'r 
1998). Rather, the significance of the innovation must he determined on a case-by-case basis. ld. A patent recognizes 
the originality of the idea, but it does not state that the heneficiary made a contribution of major significance in the field 
through his development of the idea. 
Page 7 
evidence], absent competent objective evidence pointing to where the truth, in fact, lies, will not 
suffice." Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). The petitioner has provided no such 
evidence to explain or reconcile the inconsistent and unreliable evidence. 
Furthermore, none of the reference letters or the related documents, including Edenspace's March 
10, 2008 online printouts, establishes that the beneficiary has made any original contributions of 
major significance in the field of horticulture. Based on the reference letters and related documents, 
it appears that the beneficiary was involved in the development and production of Edenfern™ - a 
fern that cleans up arsenic-laden sites, and the re-introduction of Lauae fern in Hawaii. 
As the AAO concluded in its August 19, 2010 decision, the petitioner has introduced no evidence to 
demonstrate that the beneficiary's involvement in the two plants constitutes either original 
contributions or contributions of major significance in the field of horticulture. Indeed, the 
Edenspace's March 2008 online printout, entitled Case Study: Arsenic, does not credit the 
beneficiary as having initially identified Edenfern™, from the 
University of Florida [who] originally identified this fern for which 
Edenspace has licensed exclusive rights for the cleanup arsemc contamlllate dge, and 
water." (Emphasis added.) The petitioner provided an extract of Lena Q. Ma's 2001 article, entitled 
A Fern that Hyperaccumulates Arsenic. The extract, however, does not mention the beneficiary or 
lists him as one of the authors of the article. Also, the petitioner has not submitted evidence 
indicating that the beneficiary, who according to his curriculum vitae attended the 
College from 1998 to 2003, was ever associated with the University of Florida, much less worked as 
a scientist for the University of Florida. In fact, none of Edenspace's online printouts about 
Edenfern™ mentions the beneficiary or the petitioner, much less supports the petitioner's claim that 
the beneficiary has made original contributions of major significance in the field of horticulture? 
Also, the petitioner'S Vice President of Sales and Marketing,_, claimed, in his March 11, 
2008 letter that "[t]he original samples of this fern [Edenfe~ given to the University of 
[the petitioner]." (Emphasis added.) This claim contradicts the Edenspace's 
March 10, 2008 online printouts. Again, the petitioner has provided no evidence to explain or 
reconcile the inconsistent and unreliable evidence. See Matter of Ho, 19 I&N Dec. at 591-92. 
Similarly, the petitioner has not provided evidence establishing that the beneficiary's involvement in 
the re-introduction of a plant in Hawaii constitutes either original contributions or contributions of 
major significance in the field of horticulture. As concluded in the AAO's August 19, 2010 
decision, the reference letters provided only general statements without offering any specific 
information to establish how the beneficiary'S involvement in the two plants constitutes either 
original contributions or contributions of major significance in the field of horticulture. 
Accordingly, the AAO reaffirms that the petitioner has not provided evidence of the beneficiary'S 
The AAO fi May 15, 2009 letter, which discusses the beneficiary'S knowledge and expertise 
in broad and vague terms, nt to establish that the beneficiary has made either original contributions or 
contributions of major significance in the field of horticulture. 
Page 8 
original scientific, scholarly, artistic, athletic, or business-related contributions of major significance 
in the field of horticulture. See 8 C.F.R. § 204.5(h)(3)(v). 
Evidence of the display of the alien 's work in the field at artistic exhibitions or showcases. 
8 C.F.R. § 204.5(h)(3)(vii). 
In the instant motion, the petitioner argued that, 
The Director did not consider the [p]etitioner's and the [b]eneficiary's 
Edenfern™ evidence of [] display of the alien's work in the field of 
artistic exhibitions or showiness. The brochures were not considered. 
Ferns and plants are intrinsically artistic, but the Director did not 
consider them as such. 
This is the first time the petitioner argued that the beneficiary meets the criterion under 8 C.F.R. 
§ 204.5(h)(3)(vii). It did not raise this argument when it filed the employment-based immigrant visa 
petition in November 2008. It did not raise this argument when it responded to the Director's 
Request for Evidence on May 21, 2009. And it did not raise this argument when it appealed the 
Director's denial of visa petition in July 2009. The AAO therefore concludes that the petitioner has 
abandoned this issue, as it did not timely raise it on appeal. Sepulveda, 401 F.3d at 1228 n.2; 
Hristov, 2011 WL 4711885 at * 9. 
Even if the AAO were to conclude that the petitioner had not abandoned this issue, it nonetheless 
would conclude that the petitioner had not shown that the beneficiary meets this criterion. The 
petitioner argued that the "alien's work in the field at artistic exhibitions or showcases" includes a 
2008-2009 color calendar with the petitioner'S logo and business information and a number of 
colorful brochures. A review of the calendar and brochures indicates that they were aimed to 
educate consumers of the varieties of plants that the petitioner provided and/or to encourage 
consumers to purchase plants from the petitioner. Indeed, most of the brochures include plant 
pricing information and ordering instructions. The petitioner has not provided any legal basis to 
support its argument that the sales and marketing material, which on its face contains no indication 
that the beneficiary was involved in its designing or printing, constitutes evidence of display of the 
beneficiary's work in the field at artistic exhibitions or showcases. Similarly, the petitioner has 
provided no legal authority to support its claim that "Ferns and plants are intrinsically artistic .... " 
Accordingly, the AAO concludes that the petitioner has not provided evidence of the display of the 
alien's work in the field at artistic exhibitions or showcases. See 8 C.F.R. § 204.5(h)(3)(vii). 
Evidence that the alien has performed in a leading or critical role for organizations or 
establishments that have a distinguished replltation. 8 C.F.R. § 204.5(h)(3)(viii). 
In the instant motion, the petitioner argued that it - is an organization 
Page 9 
or establishment that has a distinguished reputation. Specifically, the petitioner claimed that, 
is the sole fernery [in] the United 
States to obtain the patent to produce and distribute the Edenfern™. 
This fern is an arsenic-cleaning fern. This fern is purchased heavily by 
the Federal government to plant in toxic clean up sites. The 
Edenfern™ has been showcased nationally .... 
Although the petitioner claimed to have ~atent to "produce and distribute" Edenfern™, 
this claim, however, is contradicted by_ the petitioner's Vice and 
Marketing, who stated that "[t]he plant ... is exclusively distributed by 
(Emphasis added.) Moreover, neither the letter from 
any of the Edenspace's March 2008 online printouts specifically states that 
the petitioner "is the sole fernery [in] the United States to obtain the patent to produce and distribute 
the Edenfern™.'' (Emphasis added.) Even assuming arguendo that what the petitioner claimed 
were true, the AAO notes, as it did in its August 19, 2010 decision, that the size of the petitioner, 
generated revenue, and geographic national or internal locations can be a factor in determining the 
petitioner's "distinguished reputation." In this case, the petitioner has failed to submit sufficient 
documentary evidence demonstrating that it has a distinguished reputation. Furthermore, the plain 
language of 8 C.F.R. § 204.5(h)(3)(viii) requires the petitioner to show the beneficiary's leading or 
critical role in more than one organization or establishment. The petitioner has not made such a 
h . 4 
S owmg. 
Accordingly, the AAO reaffirms that the petitioner has not submitted evidence that the beneficiary 
has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation. See 8 C.F.R. § 204.5(h)(3)(viii). 
Evidence that the alien has commanded a high salary or other significantly high 
remuneration for services, in relation to others in the field. 8 C.F.R. § 204.5(h)(3)(ix). 
As discussed in the AAO's August 19,2010 decision, the regulation at 8 C.F.R. § 204.5(h)(3)(ix) 
requires that the beneficiary already have commended the high salary or other significantly high 
remuneration for services at the time the employment-based immigrant visa petition was filed on 
November 7, 2008. The record remains devoid of any independent, objective evidence that the 
beneficiary was already receiving a high salary or significantly high remuneration in relation to 
others in the field of horticulture as of November 2008. 
Even if the AAO could overlook the petitioner's failure to provide the abovementioned evidence, the 
AAO would nonetheless conclude that the petitioner failed to meet the high salary or other 
.j As the petitioner has not claimed, or presented sufficient evidence showing, that the beneficiary has performed in a 
leading or critical role for the_ the AAO will not address this matter. 
Page 10 
significantly high remuneration for services criterion. As discussed in the AAO's August 19, 2010 
decision, based on the plain language of 8 C.F.R. § 204.5(h)(3)(ix), the AAO is to consider this 
criterion by reviewing the beneficiary's salary or other remuneration for services in relation to 
others in the field. Regional soil and plant scientist wage statistics, such as the August 20, 2008 
Online Wage Library - FLC Wage Search Results online printout that the petitioner provided, do not 
meet this requirement. 
The AAO also notes that_ indicated in her March 9, 2008 letter that the petitioner intended 
to appoint the beneficiary to be the president ~any and intended to offer him an annual 
salary of $120,000 plus other benefits. Taking_letter at face value, the $120,000 salary 
offer would not merely compensate the beneficiary's work as the petitioner's scientist, but also as 
the president of the company. The beneficiary's pay stub for the December 25, 2009 to December 
31, 2009 pay period, submitted along with the instant motion, lists his year-to-date earnings as 
$115,499.64. It is, however, unclear from this pay stub or the pay stub for the September 3, 2010 to 
September 9, 2010 pay period, also submitted along with the instant motion, if the beneficiary's 
earnings related solely to his employment as the petitioner's scientist, or as its president, or both. As 
the petitioner has not provided evidence of the beneficiary's salary or remuneration for services as a 
soil and plant scientist, even if the AAO were to accept the regional soil and plant scientist wage 
online printout as evidence of others' salary or remuneration for services in the field of horticulture, 
the AAO lacks sufficient evidence to conclude that the beneficiary, as a soil and plant scientist, has 
commanded a high salary or other significantly high remuneration for services, in relation to others 
in the field. 
Accordingly, the AAO reaffirms that the petitioner has not provided evidence that the alien has 
commanded a high salary or other significantly high remuneration for services, in relation to others 
in the field. See 8 C.F.R. § 204.5(h)(3)(ix). 
Evidence of commercial Sllccesses in the performing arts, as shown by box office receipts or 
record, cassette, compact disk, or video sales. 8 C.F.R. § 204.5(h)(3)(x). 
When the petitioner initially filed the employment-based immigrant visa petition, it did not claim 
that the beneficiary meets the commercial successes criterion pursuant to 8 C.F.R. § 204.5(h)(3)(x). 
In its May 21, 2009 response to the Director's Request of Evidence, the petitioner claimed that the 
beneficiary meets this criterion. The Director, however, concluded otherwise in his June 18, 2009 
decision. On appeal, the petitioner again failed to advance the argument that the beneficiary meets 
this criterion. On August 19, 2010, the AAO concluded that the petitioner failed to establish that the 
beneficiary meets this criterion, noting the petitioner's failure to advance the argument on appeal, 
and the inapplicability of this criterion to the beneficiary's occupation. As the petitioner did not 
raise any issue relating to the AAO's August 19, 2010 findings on the commercial successes 
criterion under 8 C.F.R. § 204.5(h)(3)(x) in the instant motion, the AAO will not address it. The 
AAO's previous findings on the issue remain unchanged. 
Page 11 
In the instant motion to re 
2009, written by 
should qualify as comparable ev.~v, .. vv 
claimed that "[t]he letter written by [sic] submitted by [the] petitioner is a clear 
example of evidence of the [beneficiary's] participation, either individually or on a panel, as a judge 
of the work of others in the same or an allied field of specification for which classification is 
sought." The petitioner raised this argument for the first time in the instant motion. It did not raise 
this argument when it filed the employment-based immigrant visa petition in November 2008. It did 
not raise this argument when it responded to the Director's Request for Evidence on May 21, 2009. 
And it did not raise this argument when it appealed the Director's denial of visa petition in July 
2009. The AAO therefore concludes that the petitioner has abandoned this issue, as it did not timely 
raise it on appeal. Sepulveda, 401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885 at 9. 
Even if the AAO were to conclude that the petitioner had not abandoned this issue, it nonetheless 
would find that letter does not constitute comparable evidence to establish the 
beneficiary'S eligibility, as required under 8 C.F.R. § 204.5(h)(4). Specifically, the plain language of 
the regulation states that only when the petitioner can show that "the [ten] standards [or criteria, as 
enumerated in 8 C.F.R. § 2045.(h)(3),] do not readily apply to the beneficiary's occupation," may 
the petitioner submit comparable evidence. The petitioner has not established that the ten criteria do 
not readily apply to the field of horticulture. Indeed, the petitioner made no argument in his motion 
relating to the applicability of the ten criteria to the field of horticulture. Rather, the petitioner 
repeatedly stated that the ten criteria do not readily apply to the beneficiary. The AAO finds the 
petitioner's reading of the regulation contrary to the plain lan~ion. Moreover, the 
AAO is not persuaded~s characterization of ______ letter. Contrary to 
the petitioner's claim,_ made no mention of the beneficiary ever "participat[ing], 
either individually or on a panel, as a judge of the work of others in the same or an allied field of 
specification for which classification is sought. "S 
Accordingly, the AAO concludes that the petitioner has not shown that the ten criteria enumerated in 
8 C.F.R. § 204.S(h)(3) do not readily apply to the field of horticulture or that the petitioner has 
submitted comparable evidence to establish the beneficiary's eligibility. 
Pursuant to 8 C.F.R. § 103.5(a)(I), a motion must be accompanied by a statement indicating if the 
validity of the AAO's unfavorable decision has been or is the subject of any judicial proceeding. As the 
petitioner failed to submit such a statement accompanying his motion to reopen and reconsider, the 
regulations 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 
To the extent that the petitioner now claims that the beneficiary meets the criterion under 8 C.F.R. § 204.5(h)(3)(iv), 
the AAO deems that the petitioner has abandoned this issue, as it did not timely raise it on appeal. Sepulveda., 401 F.3d 
at 1228 n.2; Hristov, 2011 WL 4711885 at " 9. 
Page 12 
has the petitioner 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 the 
instant motion to reconsider should be granted, because the petitioner has not stated any valid reason for 
reconsideration, nor has the petitioner sufficiently supported any valid reason for reconsideration with 
pertinent precedent decisions establishing that the AAO's August 19, 2010 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 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 August 
19, 2010, is affirmed, and the petition remains denied.