dismissed EB-1A Case: Dance

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal prIvacy 
~mL1CCOPY 
FILE: 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Avc._ N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Date: 
MAR 0 3 2011 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationality Act; 8 U.S.C. § JJ53(b)(J)(A) 
ON BEHALF 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 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § I03.5(a)(I)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscls.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied this employment-based 
immigrant visa petition on January 5, 2009. The Administrative Appeals Office (AAO) 
dismissed the petitioner's appeal of that decision on October 26, 2009. The matter is now before 
the AAO on a motion to reopen and a motion to reconsider. The motions will be dismissed, the 
previous decision of the AAO will be affirmed, and the petition will remain denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(1)(iii) requires that the 
motion must be "[a]ccompanied 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. 
§ 103.5(a)(4) requires that "[a] motion that does not meet applicable requirements shall be 
dismissed. In this case, the petitioner failed to submit a statement regarding if the validity of the 
decision of the AAO has been or is subject of any judicial proceeding. As such, the motion must 
be dismissed pursuant to the regulation at 8 C.F.R. § 103.5(a)(4). 
Notwithstanding the above, in the decision of the AAO dismissing the petitioner's original 
appeal, the AAO found that the petitioner failed to establish that he meets at least three of the 
regulatory criteria pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). Specifically, the AAO 
found that the petitioner failed to establish eligibility for the awards criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(i), the membership criterion pursuant to the regulation at 8 
C.F .R. § 204.5(h)(3)(ii), the published material criterion pursuant to the regulation at 8 C.F .R. 
§ 204.5(h)(3)(iii), the original contributions criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(v), the display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), 
and the high salary criterion pursuant to the regulation at 8 C.F .R. § 204.5(h)(3)(ix). In fact, the 
AAO found that the petitioner failed to establish eligibility for any of the criteria pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3). 
On motion, regarding the AAO's findings that the petitioner failed to establish that he received 
any prizes or awards for his finishes offourth, fifth, and sixth at competitions, counsel argues: 
The _ referenced in the Dismissal is the 
~s under t~ices of the _ that these events took place. 
Without sanction by the_, these events would be merely local or regional in 
nature. Enclosed is a copy of the July 2006 Competition Calendar listing 
the events, among others, that the petitioner entered and placed in. 
As indicated above, the petitioner submitted the July 2006 Competition Calendar from 
We note here that this was the only documentary evidence submitted on motion. A ~~1t'~n 
reopen must state the new facts to be provided 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 
Page 3 
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. § 103.5(a)(2). In addition, the petitioner failed to explain why the 
evidence was previously unavailable and could not have been submitted earlier. The petitioner has 
been afforded three different opportunities to submit this evidence: at the time of the original filing 
of the petition on March 19, 2007, in response to the director's request for additional evidence 
issued on August 18,2008, and at the time of the filing of the appeal on February 6, 2009. A review 
of the evidence that the petitioner submits on motion reveals no fact that could be considered "new" 
under 8 C.F.R. § 103.5(a)(2) and, therefore, cannot be considered a proper basis for a motion to 
reopen. 
Furthermore, 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 v. Doherty, 502 U.S. 314, 323 (I 992)(citing INS v. Abudu, 485 U.S. 94 (1988». A 
party seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With 
the current motion, the petitioner has not met that burden. Regardless, the documentary evidence 
submitted by the petitioner fails to establish that the petitioner received any prizes or awards from 
his fourth, fifth, and sixth place finishes. The July 2006 Competition Calendar from NDCA 
submitted by the petitioner only reflects information for the events, such as the names, addresses, 
and dates, and does not provide information regarding any prizes or awards. As the plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(i) requires "[d]ocumentation of the alien's 
receipt of lesser nationally or internationally recognized prizes or awards for excellence in the 
field of endeavor [emphasis added]," the petitioner must establish that his fourth, fifth, and sixth 
place finishes are nationally or internationally recognized prizes or awards for excellence. 
Merely submitting documentary evidence reflecting the petitioner's finishes in dance 
competitions is insufficient to meet the plain language of the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i) without documentary evidence establishing that his finishes are nationally or 
internationally recognized prizes or awards for excellence. 
Moreover, counsel argues that the AAO failed to consider the documentary evidence submitted 
in response to the director's request for additional evidence pursuant to the regulation at 8 C.F.R. 
§ 103.2(b)(8). However, the documentary evidence, as addressed in the AAO's decision, related 
to events occurring after the filing of the petition. Eligibility must be established at the time of 
filing. 8 C.F.R. §§ 103.2(b)(l), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg\. Commr. 
1971). A petition cannot be approved at a future date after the petitioner becomes eligible under 
a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That decision 
further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that we cannot 
"consider facts that come into being only subsequent to the filing of a petition." Id at 176. 
I The word "new" is defmed as "1. having existed or been made for only a short time ... 3. Just discovered, found, or 
learned <new evidence> . " WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (1984)(emphasis in 
original). 
Page 4 
Therefore, the AAO correctly did not consider the petitioner'S documentary evidence that 
reflected events occurring after the filing of the petition. The filing of a motion to reopen does 
not permit the petitioner to become eligible based on events occurring after the filing of the 
original petition. 
In addition, counsel argues that the AAO failed to give proper weight and consideration to the 
petitioner's evidence and argues that meeting at least three of the ten criteria pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3) is sufficient to demonstrate sustained national or 
international acclaim. 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 U.S. Citizenship and Immigration (USerS) 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 0/ 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 proceedings. 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. 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. See 
Matter a/Medrano, 20 I&N Dec. 216, 219 (BIA 1990, 1991). 
In this case, counsel failed to support the motion with any precedent decisions or other 
comparable evidence to establish that the decision was based on an incorrect application of law 
or USCIS policy. We note that in 2010, the U.S. Court of Appeals for the Ninth Circuit (Ninth 
Circuit) reviewed the denial of a petition filed under this classification. Kazarian v. USCIS, 596 
F.3d 1115 (9th Cir. 2010). Although the court upheld the AAO's decision to deny the petition, the 
court took issue with the AAO's evaluation of evidence submitted to meet a given evidentiary 
criterion? With respect to the criteria at 8 C.F.R. §§ 204.5(h)(3)(iv) and (vi), the court concluded 
that while USCIS may have raised legitimate concerns about the significance of the evidence 
submitted to meet those two criteria, those concerns should have been raised in a subsequent "final 
merits determination." Id. 
The court stated that the AAO's evaluation rested on an improper understanding of the regulations. 
Instead of parsing the significance of evidence as part of the initial inquiry, the court stated that "the 
proper procedure is to count the types of evidence provided (which the AAO did)," and if the 
petitioner failed to submit sufficient evidence, "the proper conclusion is that the applicant has failed 
2 Specifically, the court stated that the AAO had unilaterally imposed novel. substantive. or evidentiary requirements 
beyond those set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(iv) and 8 C.F.R. § 204.5(h)(3)(vi). 
Page 5 
to satisfY the regulatory requirement of three types of evidence (as the AAO concluded)." Id. at 
1122 (citing to 8 C.F.R. § 204.S(h)(3)). The court also explained the "fmal merits determination" as 
the corollary to this procedure: 
If a petitioner has submitted the requisite evidence, USCIS determines whether the 
evidence demonstrates both a "level of expertise indicating that the individual is one of 
that small percentage who have risen to the very top of the[ir] field of endeavor," 
8 C.F.R. § 204.S(h)(2), and "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of 
expertise." 8 C.F.R. § 204.5(h)(3). Only aliens whose achievements have garnered 
"sustained national or international acclaim" are eligible for an "extraordinary ability" 
visa. 8 U.S.C. § IIS3(b)(l)(A)(i). 
Id. at 1119. 
Thus, sets forth a two-part approach where the evidence is first counted and then 
considered in the context of a final merits determination. Therefore, submitting evidence that 
establishes that the petitioner meets at least three of the regulatory criteria is insufficient to establish 
the petitioner's eligibility pursuant to section 203(b)(l)(A) of the Act without documentation 
reflecting that the petitioner has sustained national or international acclaim and his achievements 
have been recognized in the field. 
We also note that counsel claimed that "the petitioner never indicated that his 0 I nonimmigrant 
visa status confers upon him automatic immigrant status under INA 203(b)(l)(A)." However, as 
indicated in the AAO's decision, counsel did, in fact, argue that the petitioner's 0-1 
nonimmigrant status was a persuasive factor in determining the petitioner's eligibility pursuant to 
section 203(b)(I)(A) of the Act. Specifically, counsel stated that "[the petitioner] has already 
been determined to be an alien of extraordinary ability by the Service. This prior determination 
by the Service, which must be considered a persuasive factor, together with other proofs 
presented, has clearly been ignored in the formulation of the denial." As such, we are not 
persuaded by counsel's argument. 
Finally, we note that counsel failed to address the other findings of the AAO as they pertained to 
the awards criterion. Furthermore, counsel failed to address the membership criterion, the 
published material criterion, the original contributions criterion, the artistic display criterion, and 
the high salary criterion. Accordingly, we deem those issues to be abandoned. See Sepulveda v. 
Us. AII'y Gen., 401 F.3d 1226, 1228 n. 2 (II th Cir.200S). Even if counsel were to prevail on the 
awards criterion raised on motion, and we do not imply that he would, such a conclusion would not 
overcome the AAO's ultimate conclusion that the petitioner does not meet at least three of the 
regulatory criteria at 8 C.F.R. § 204.S(h)(3). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
ofthe Act, 8 U.S.C. § 1361. Here, the petitioner has not sustained that burden. 
Page 6 
ORDER: The motion to reopen and motion to reconsider are dismissed, the decision of the 
AAO dated October 26, 2009 is affirmed, and the petition remains denied.