dismissed EB-1A Case: Capital Management

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: MAR. 12, 2024 In Re: 30294309 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a partner in a capital management firm, seeks classification as an alien of extraordinary 
ability. See Immigration and Nationality Act (the Act) section 203(b )(1 )(A), 8 U.S.C. § 1153(b )(1 )(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 Petitioner did not 
establish that he met the initial evidence requirement for this classification by meeting at least three of 
the evidentiary criteria under 8 C.F.R. § 204.5(h)(3). They also dismissed a subsequent motion to 
reopen. The Petitioner then filed an appeal of the Director's motion decision, which we dismissed as 
moot. The matter is now before us on combined motions to reopen and reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss both 
motions. 
I. ANALYSIS 
A. Timeliness of Motions 
A motion to reconsider must be filed within 30 days of the decision that the motion seeks to reconsider, 
with an additional 3 days added when notice of the decision is sent by mail. 8 C.F.R. §§ 103.5(a)(l)(i), 
103.8(b). There is no provision in the relevant statute or regulations that allows us to extend this 
period. In this case, our appeal decision was issued on July 28, 2023, and the Petitioner filed this 
motion on September 11, 2023, 45 days later. So the motion to reconsider was not filed within the 
prescribed period and will be dismissed. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). Our review on motion is limited to reviewing our latest decision. 8 C.F.R. 
§ 103.5(a)(l)(ii). We may grant motions that satisfy these requirements and demonstrate eligibility 
for the requested benefit. See Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992) (requiring that 
new evidence have the potential to change the outcome). 
We may, in our discretion, excuse a failure to file a motion to reopen within the prescribed period 
where a petitioner can demonstrate that the delay was reasonable and beyond their control. 
8 C.F.R. § 103.S(a)(l)(i). Here, the Petitioner acknowledges that his motion to reopen was filed late, 
but requests that this delay be excused because he was away from his permanent mailing address 
during the response period and immediately notified his attorney upon returning and reading the appeal 
decision. In support of this statement, he submits airline ticket receipts, a short-term rental agreement, 
and pages from a wedding announcement website showing that he and his wife were in Hawaii for 
their wedding and honeymoon for more than two months. However, he does not explain why he did 
not take reasonable steps to ensure that he received notification of any action taken in this matter while 
he was away for such an extended period. In addition, in the previous matter we issued a notice of 
self-representation to the Petitioner and his representative a month prior to issuing our appeal decision, 
as the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, was not 
properly completed. But there is no indication in United States Citizenship and Immigration Services 
(USCIS) records that either party took any measures after receiving this notice to make certain that 
they would receive notice of any further actions. We therefore conclude that the Petitioner's delay in 
filing this motion to reopen was neither reasonable nor beyond his control. 
Despite our conclusion above, however, we will exercise our discretion to reopen our most recent 
decision. In that decision, we noted that while the Petitioner referred in his brief to a motion to reopen 
filed and dismissed subsequent to the Director's denial of his petition, he did not include a copy of the 
motion decision or any other evidence that the Director had dismissed his subsequent motion. Further, 
USCIS records showed only that the denial of the petition had been reopened, indicating that the matter 
remained open and the Director had not issued a decision. With his current motion, the Petitioner now 
includes a copy of the Director's motion decision, demonstrating that the appeal was timely filed in 
response to a dismissal of that motion. 1 We will therefore review the merits of the Petitioner's claims 
on appeal. 
B. Individual of Exceptional Ability 
To establish eligibility as an individual of extraordinary ability, a petitioner ( or anyone on the 
petitioner's behalf) must establish that they: 
• Have extraordinary ability in the sciences, arts, education, business, or athletics; 
• Seek to enter the United States to continue work in their area of extraordinary ability; and that 
• Their entry into the United States will prospectively substantially benefit the United States. 
1 We note that when completing Form l-290B, Notice of Appeal or Motion, for his initial motion to reopen, the Petitioner 
filled in the business or organization box in Part 1 with the name of his employer at the time,I I 
despite not including this business name on Form 1-140, Immigrant Petition for Alien Worker. In addition, when filing 
his appeal, the Petitioner provided the receipt number and decision date for his original petition in Part 2 of Form I-290B, 
not those of his dismissed motion to reopen which was the subject of the appeal, and did not otherwise include the motion 
information in his brief Because of these errors, on appeal we were unable to locate the receipt number or decision for 
the motion to reopen in USCIS records. 
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Extraordinary ability must be demonstrated by evidence of sustained national or international acclaim 
as well as extensive documentation that their achievements have been recognized in the field. Section 
203(b)(l) of the Act. 
The implementing regulation further states that 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." It also 
sets forth a multi-part analysis. A petitioner can demonstrate international recognition of their 
achievements in the field through a one-time achievement (that is, a major, internationally recognized 
award). If such evidence is unavailable, then they must alternatively provide evidence that meets at 
least three of the ten listed criteria, which call for evidence about other awards they may have received, 
published material about them in qualifying media, and their authorship of scholarly articles, among 
other types of evidence. 8 C.F.R. §§ 204.5(h)(2),(3). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination, assessing whether the record shows that the 
individual possesses the acclaim and recognition required for this highly exclusive immigrant visa 
classification. 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). 
At the time of filing, the Petitioner was a partner in a capital management firm, specializing in 
investments in early stage technology companies. In his initial decision, the Director determined that 
the Petitioner met only two of the evidentiary criteria at 8 C.F.R. 204.5(h)(3), pertaining to his 
participation as a judge of the work of others and his leading or critical role for organizations with a 
distinguished reputation. Since the Petitioner had not established that he met the initial evidence 
requirement as an individual of exceptional ability, the Director did not conduct a final merits 
determination of the totality of the evidence. 
In his motion to reopen, the Petitioner focused on the criterion at 8 C.F.R. § 204.5(h)(3)(iii). That 
evidentiary criterion requires evidence of published material about a petitioner and their work in the 
field of endeavor, published in a professional or major trade publication or other major medium. 
Specifically, the Petitioner asserted that Venture Capital Journal (VCJ), a publication in which an 
article about him and his work appeared, qualified as either a professional or major trade publication. 
In support of this motion, the Petitioner submitted material from the libraries of Harvard University 
and the University of Chicago, a social media profile of the author of the article about him, metrics 
concerning a journal titled Venture Capital, and pages from VCJ's website. He asserted that VCJ 
qualifies as a major trade publication, applying a definition of "major trade publication" from the U.S. 
Library of Congress. However, the Director concluded that the Petitioner had not established that VCJ 
was a major trade publication, as the record lacked circulation and comparative data showing that it is 
a major publication in its field. 
On appeal, the Petitioner reiterated its previous assertions concerning VCJ's qualification as a 
professional or major trade publication, stressing that leading business schools "believe it to be one of 
the leading trade publications with the private equity and venture capital industries." It also again 
refers to citation metrics regarding Venture Capital, which it misidentifies as VCJ, as well as other 
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evidence showing that its website receives thousands of visitors per day. The citation information 
pertains to a journal published by Routledge (which appears to be a subsidiary or division of Taylor 
& Francis), whereas VCJ's website states that it is published by PEI. As for the number of website 
visits, we agree with the Director that the record lacks comparative data to show that VCJ is widely 
read in the field such it qualifies as a major trade publication. While the evidence establishes that VCJ 
is a publication focusing on the venture capital industry, and that two respected business schools 
include it in long lists of reference material about the venture capital industry, it does not demonstrate 
that it qualifies as a professional, major trade or other major medium per this criterion. 
The Petitioner has not submitted the required initial evidence of either a one-time achievement or 
documents that meet at least three of the ten criteria. As a result, we need not provide the type of final 
merits determination referenced in Kazarian, 596 F.3d at 1119-20. Nevertheless, we have reviewed 
the entire record and conclude that it does not establish that the Petitioner has the acclaim and 
recognition required for the classification sought. 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, he has 
not established eligibility as an individual of extraordinary ability. Therefore, the motion will be 
dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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