dismissed EB-1A Case: Creativity As It Relates To Public Policy

U.S. Citizenship 
and Immigration 
Services 
MATTER OF E-E-
MOTION ON AAO DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JUNE 7. 2016 
PETITION: FORM I-140 IMMIGRANT PETITIONER FOR ALIEN WORKER 
The Petitioner. who works in the field of .. creativity as it relates to public policy." seeks 
classification as an individual of extraordinary ability. See Immigration and Nationality Act (the 
Act) § 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, Nebraska Service Center. denied the petition. The Petitioner appealed the denial to 
this ot1ice and we dismissed the appeal. He then tiled a motion to reconsider. which we denied. The 
matter is now before us on a second motion to reconsider. The motion will be denied. 
A motion to reconsider must be filed \Vithin 30 days of the decision that the motion seeks to 
reconsider. 8 C.F.R. § 103.5(a)(l)(i). For a decision received by maiL we allow 33 days. S'ee 
8 C.F.R. § 103.8(b). We denied the Petitioner's first motion to reconsider on September 1 L 2015. 
The Petitioner submitted this second motion on November 9, 2015. 59 days after our previous 
decision's issuance. The motion is therefore denied as untimcly. 1 
In addition to its untimeliness. the instant motion does not otherwise meet the requirements of a 
motion to reconsider. A motion to reconsider contests the correctness of the original decision based 
on the previous factual record. 8 C.F.R. § 103.5(a)(3). The motion must demonstrate that the prior 
decision was incorrect based on the evidence of record at the time. !d. It must state the reasons for 
reconsideration and cite any pertinent precedent to establish that the original decision was based on 
an incorrect application of law or policy. !d. On motion. we consider only arguments and evidence 
relating to the grounds underlying the most recent decision. In the instant filing. the Petitioner docs 
not state that he met the requirements of a motion reconsider in his last filing, but instead presents 
arguments relating to underlying eligibility issues discussed in our dismissal of the appeal. 
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The Petitioner's first attempt to file the instant motion was rejected due to improper fees. We note. however. that he 
submitted this first attempt on October 16. 2015. or 35 days after the previous decision. rendering it similarly untimely. 
(b)(6)
Matter of E-E-
Nevertheless, we do not find that the underlying determination regarding the Petitioner's eligibility 
was made in error. The Petitioner first states that his prior 0-1 nonimmigrant visas should be 
considered prima facie evidence of his extraordinary ability. He reasons that .. [ w]hile there is 
nothing requiring USC IS [U.S. Citizenship and Immigration Services] to approve petitioner because 
of a prior approval, [ th ]ere is a strong precedent to remain consistent with the application of law and 
fact... The Petitioner does not cite to case law. regulations, or other guidance to support his 
statement. In contrast, we have previously provided citation to three examples of instances in which 
Forms I-140 immigrant petitions were found to be properly denied after prior approval of 
nonimmigrant petitions: Q Data Consulting. Inc. v. INS, 293 F. Supp. 2d 25 (O.D.C. 2003 ): IKEA 
US v. United States Dep 't l?{Justice, 48 F. Supp. 2d 22 (D.D.C. 1999): Fedin Bros. Co. Ltd. v. 5>ara. 
724 F. Supp. 1103 (E.D.N.Y. 1989). 
The Petitioner states that we ignored his prior 0-1 approval. In fact our dismissal of his appeal 
contains a section entitled ·'0-1 Nonimmigrant Visa ... He alleges that we .. simply determined the 0 
visa was in error. and gave absolutely zero supporting justification for that holding ... In actualit y. we 
made no finding regarding the accuracy of any previous visa approvals. but instead stated that any 
prior approval \vas not relevant to the current adjudication. The Petitioner indicates that our position 
.. creates an impossibly chaotic system where decisions of USCIS are randomly overturned. without 
any express reason.'' However. none of the decisions relating to the underlying petition has affected 
any prior visa approvals. As for the reasoning behind the decisions issued. the Petitioner received 
a 
decision from the Director on the initial petition. a decision from us on the appeal. and a 
decision 
from us on the first motion to reconsider. Each of these provides an explanation of the rationale for 
the findings made. 
The Petitioner correctly states that consistency in adjudication is a policy consideration. We believe. 
however. that a decision based on a thorough review of the evidence is the best way to serve that 
interest. We decline to substitute an earlier decision for an evaluation and analysis of the merits of 
the instant petition. In the same way, we would not prejudice a future petition filed by the Petitioner 
because of this petition's denial. As we noted in our dismissal, we are not required to approve 
applications or petitions where eligibility has not been demonstrated. S'ee Church l?l ,)'cientology 
Int '1. 19 I&N Dec. 593, 597 (Comm·r 1988). 
In his second challenge on motion . the Petitioner states that we did not properly consider the 
evidence provided regarding the evidentiary criterion requiring original scientific, scholarly. artistic. 
athletic or business-related contributions of major significance in the field located at 8 C.F.R. 
§ 204.5(h)(3)(v). The Petitioner references a letter from the dated 
November 18. 2005. which reads: .. Thus, in complimenting, locally, your global efforts in the Jield 
of Creativity and Innovations. your activities has [sic] been incorporated in Article 5. Section I (ii) 
Page 3. of our enabling constitution approved by the The Petitioner 
urges that a change to this organization's constitution was based on his work. and that this has 
affected over 36.000 youths. However. neither the letter nor other evidence in the record contains 
further explanation that corroborates the Petitioner's statements regarding the meaning of this letter. 
his work's impact or his contributions in the field at large. 
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Matter l?{ E-E-
The Petitioner similarly contends that other letters of support were not given proper weight in an 
assessment of his impact on the field. He notes. for example. that we did not address the following 
statement regarding his book: --It is a remarkable piece. for which you are to be commended highly 
and encouraged greatly." We acknowledge this praise of the Petitioner's work. The criterion 
requires. however. evidence of the Petitioner"s contributions of major significance in the Jicld. 
While the cited letter indicates that the Petitioner's book has garnered the respect of those in the 
field. it does not show how it has had an impact. As a result we do not find an error was made in 
previous determinations regarding this criterion. 
Finally. we note that even if we made all findings urged by the Petitioner, he would satisfy only tvvo 
of the initial evidentiary criteria. when at least three are required. 8 C.F.R. § 204.5(h)(3 ). As a 
result the Petitioner does not allege errors that would affect his eligibility for the benefit sought. 
The motion will be denied for the above stated reasons, with each considered an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U .S.C. § 1361: Maller l?l 
Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reconsider is denied. 
Cite as Maller (?fE-E-, ID# 16650 (AAO June 7, 2016) 
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