dismissed EB-1A Case: Business Development

U.S. Citizenship 
and Immigration 
Services 
In Re : 16493438 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: APR. 21, 2021 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner , a development director, seeks classification as an individual of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A) . This first 
preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation. 
The Director of the Nebraska Service Center denied the petition, concluding that the record did not 
establish, as required, that the Petitioner satisfied at least three of the initial evidentiary criteria for this 
classification. The Petitioner appealed that decision to our office, and we dismissed the appeal. We 
determined that the Petitioner met the requisite initial evidentiary requirements but concluded in a 
final merits determination that he did not establish his sustained national or international acclaim and 
that he is among the small percentage of individuals at the very top of his field. The Petitioner 
subsequently filed a motion to reconsider , which we also dismissed. The matter is now before us on 
a combined motion to reopen and motion to reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss both motions . 
I. MOTION REQUIREMENTS 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103 .5(a)(2). A motion to reconsider must (1) state the reasons for reconsideration and establish that 
the decision was based on an incorrect application of law or U.S. Citizenship and Immigration Services 
(USCIS) policy, and (2) establish that the decision was incorrect based on the evidence in the record 
of proceedings at the time of the initial decision. 8 C.F.R. § 103.5(a)(3) . 
The regulation at 8 C.F.R. § 103.S(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reconsideration, a 
petitioner must not only meet the formal filing requirements (such as submission of a properly 
completed Form I-290B, Notice of Appeal or Motion, with the correct fee), but also show proper cause 
for granting the motion. We cannot grant a motion that does not meet applicable requirements. See 
8 C.F.R. § 103.5(a)(4). 
II. LAW 
Section 203(b )(1 )(A) of the Act makes immigrant visas available to individuals with extraordinary 
ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained 
national or international acclaim and whose achievements have been recognized in the field through 
extensive documentation. The term "extraordinary ability" refers only to those individuals in "that 
small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The 
implementing regulation at 8 C.F.R. § 204.5(h)(3) sets fmih a multi-part analysis. First, a petitioner 
can demonstrate sustained acclaim and the recognition of their achievements in the field through a 
one-time achievement (that is, a major, internationally recognized award). If the petitioner does not 
submit this evidence, then they must provide sufficient qualifying documentation that meets at least 
three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i)---{x) (including items such as awards, 
published material in certain media, and scholarly articles). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether the record shows sustained 
national or international acclaim and demonstrates that the individual is among the small percentage 
at the very top of the field of endeavor. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
( discussing a two-part review where the documentation is first counted and then, if fulfilling the 
required number of criteria, considered in the context of a final merits determination); see also 
Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
III. ANALYSIS 
As a preliminary matter, we note that by regulation, the scope of a motion is limited to "the prior 
decision." 8 C.F.R. § 103 .5(a)(l)(i), which, in this case, was our dismissal of the Petitioner's previous 
motion to reconsider. The issue before us is whether the Petitioner has submitted new facts to warrant 
reopening or established that our decision to dismiss the previous motion was based on an incorrect 
application oflaw or USCIS policy. 
A. Prior AAO Decisions 
In our decision dismissing the Petitioner's appeal, we determined that although he met the initial 
evidence requirements by satisfying three of the regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x), he 
did not establish his sustained national or international acclaim and that he is among the small 
percentage of individuals at the very top of his field. See 8 C.F.R. 204.5(h)(2). 
In the prior motion to reconsider, the Petitioner argued that we overlooked or did not properly weigh 
certain evidence related to the awards, judging, and original contributions criteria at 8 C.F.R. § 
204.5(h)(3)(i), (iv) and (v). He asse1ied that pro per consideration of that evidence should have resulted 
in a conclusion in the final merits dete1mination that he established his sustained acclaim and 
placement among the small percentage of at the very top of his field. In dismissing the motion to 
reconsider, we considered each of his claims in tum and explained how our appellate decision did in 
fact address the specific evidence he claimed had been overlooked. We observed that while the 
Petitioner may have disagreed with our assessment of that evidence, he did not establish that we had 
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overlooked it in adjudicating his appeal, or that we had misapplied law or users policy in our 
evaluation of such evidence. Finally, we acknowledged the Petitioner's request that we consider new 
evidence submitted for the first time in support of his motion to reconsider. We did not consider the 
new evidence, emphasizing that a motion to reconsider must establish that our prior decision was 
incorrect based on the evidence ofrecord atthe time of the initial decision. See 8 e.F.R. § 103 .5(a)(3). 
B. Motion to Reconsider 
With the current motion, the Petitioner submits a brief in which he repeats nearly verbatim the same 
arguments made in his brief in support of his first motion to reconsider. Specifically, the Petitioner 
once again claims that we failed to consider certain evidence he submitted in support of the awards, 
judging and original contributions criteria at 8 e.F.R.§ 204.5(h)(3)(i), (iv) and (v) in adjudicating his 
appeal. As noted, these claims were acknowledged and thoroughly addressed in our decision 
dismissing the previous motion. The Petitioner makes no reference to the merits of that decision but 
rather focuses on our appellate decision, which is not before us in this proceeding. 
The Petitioner cannot meet the requirements of a motion to reconsider by broadly disagreeing with 
our conclusions; the motion must demonstrate how we erred as a matter of law or policy. See Matter 
of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (finding that a motion to reconsider is not a process by 
which the party may submit in essence, the same brief and seek reconsideration by generally alleging 
error in the prior decision.) 
Moreover, the Petitioner does not argue that we incorrectly applied law or users policy by dismissing 
his motion to reconsider. Most of the Petitioner's brief in supp mi of the current motion is devoted to 
a criticism of users policy guidance related to the adjudication of extraordinary ability immigrant 
petitions. 1 This criticism includes a rejection ofUSeTS' reliance on Kazarian as a basis for conducting 
a multi-part analysis that includes a final merits determination. The Petitioner nevertheless 
acknowledges that the referenced guidance is established agency policy and does not articulate a claim 
that we misapplied this policy in our adjudication of his prior motion to reconsider. Rather, the 
Petitioner maintains that we erred in our adjudication of the appeal by adhering to Kazarian and 
applicable users policy. 
Specifically, the Petitioner argues that "it is an abuse of discretion for users to rely on Kazarian for 
the final merits analysis," particularly because the petitioner in Kazarian, unlike the Petitioner here, 
did not satisfy at least three of the criteria at 8 e.F.R. § 204.5(h)(3)(i)-(x), and because "Kazarian 
mentions the concept of a final merits detennination merely in passing and does not explain or provide 
a structural framework for such a determination." He fmiher argues that "[i]nstead, the weighing of 
the quality and credibility of evidence should be guided by prior federal court decisions." The 
Petitioner specifically highlights Buletini v. INS, 850 F. Supp. 1222 (E.D. Mich. 1994 ), noting that 
"the nature and scheme of the analysis articulated by Buletini most closely adheres to the plain 
1 See USCTS Policy Memorandum PM 602-0005.1,EvaluationofEvidenceSubmittedwith Ce1tainFormI-l 40Petitions; 
Revisions to the Adjudicator's Field Manual (AFM) Chapter 22.2, AFM Update ADJJ-14 (Dec. 22, 2010), 
https://www.uscis.gov/policymanual/HTMUPolicyManual.html. 
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meaning of the statute and regulations." 2 The Petitioner therefore maintains that we should have 
applied Buletini, a pre-Kazarian district court decision, in adjudicating his appeal. 
We note, however, that in contrast to the broad precedential authority of the case law of a United States 
circuit court (such as with Kazarian), we are not bound to follow the published decisions of a United 
States district court in cases arising within the same district. See Matter of K-S-, 20 I&N Dec. 715 
(BIA 1993 ). The reasoning underlying a district judge's decision will be given due consideration 
when it is properly before us; however, the analysis does not have to be followed as a matter of law. 
Id.at 719. 
Regardless, the Buletini decision does not clearly conflict with the Kazarian court's characterization 
of the adjudication process as including a final merits determination. The Buletini opinion indicates 
that the court considered the possibility that a petitioner can submit evidence satisfying three criteria 
and still not meet the extraordinary ability standard if USCIS provides specific and substantiated 
reasoning for its conclusion. See Buletini, 860 F. Supp. at 1234. The court in Buletini did not reject 
at any time the concept of examining the quality of the evidence presented to determine whether it 
establishes a Petitioner's eligibility for this highly restrictive classification. Further, as already 
discussed, the Petitioner's assertion that we should have relied on Buletini and other pre-Kazarian 
federal district court decisions rather than Kazarian and binding USCIS policy guidance is not 
persuasive. 
In sum, although the Petitioner has submitted a brief in support of the current motion, he does not 
contend that we misapplied the law or USCIS policy in dismissing the previous motion to reconsider. 
The Petitioner's statement in support of the current motion does not directly address the conclusions we 
reached in our immediate prior decision or provide reasons for reconsideration of those conclusions. 
As such, the motion does not meet all the requirements of a motion to reconsider, and 8 C.F.R. § 
103 .5(a)( 4) requires dismissal of the motion. 
C. Motion to Reopen 
As noted, a motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R 
§ I 03.5(a)(2). Although the Petitioner indicated on the Form I-290B, Notice of Appeal or Motion, 
that he was filing a combined motion to reopen and motion to reconsider , the Petitioner has neither 
presented new facts in his brief nor submitted any documentary evidence in support of the instant 
motion. 
Accordingly, we will dismiss the motion to reopen. 
2 In addition to Buletini, the Petitioner cites Muni v INS, 891 F Supp. 440 (N.D. Ill. 1995),Racine v. INS, 995 U.S. Dist. 
LEXIS 4336, 1995 WL 153319 (N.D. Ill. Feb. 16, 1995), Crimson v. INS , 934 F. Supp. 965 (N.D. Ill. 1996), Russell v. 
INS,2001 U.S. Dist. LEXIS 52 (E.D. Ill. Jan.4,200l)andGu/en v. Chernoff, l 980U.S. Dist. LEXIS 54607 (E.D. Pa. Jul 
16, 2008), noting that "[h]adAAO in this case incorporated the correct analysis from cases that preceded Kazarian, AAO 
would be bound to conclude that the Petitioner ... has met the 'preponderance of the evidence' standard." As discussed 
in this decision, we are not bound to follow the published decisions ofa district court. 
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IV. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration 
and has not overcome the grounds for dismissal of his prior motion to reconsider. The motion to 
reopen and motion to reconsider will be dismissed for the above stated reasons. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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