dismissed EB-1A Case: Development Director

U.S. Citizenship 
and Immigration 
Services 
In Re: 19099221 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : NOV . 17, 2021 
Form 1-140, 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 two motions, 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 oflaw 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 1-290B, 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)(l)(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 forth 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," which, in this case, was our dismissal of the Petitioner's previous combined motion to 
reopen and motion to reconsider. See 8 C.F.R. § 103.5(a)(l)(i). 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 Petitioner's first motion, a motion to reconsider, he 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 asserted that proper consideration of that evidence should 
have resulted in a conclusion in the final merits determination that he established his sustained acclaim 
and placement among the small percentage of individuals 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 
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we had 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 of record at the time of the initial decision. See 8 e.F.R. § 103.5(a)(3). 
In his second motion, a combined motion to reopen and motion to reconsider, the Petitioner once again 
claimed 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. The 
Petitioner, however, made no reference to our decision dismissing his previous motion to reconsider, 
but rather focused on our appellate decision. 
In dismissing the motion to reconsider, we observed that the Petitioner's brief was essentially identical 
to the previous brief submitted in support of his first motion. Although the Petitioner contended that 
we erred in our dismissal of the appeal, he did not attempt to identify or rebut any specific errors in 
our most recent decision, or establish how we had misapplied the law or users policy in dismissing 
the previous motion to reconsider. Instead, the Petitioner maintained that we erred in our adjudication 
of the appeal by adhering to Kazarian and applicable users policy. Again, while our appellate 
decision was not the subject of the Petitioner's motion, we nevertheless addressed the Petitioner's 
assertion that we should have relied on Buletini v. INS, 850 F. Supp. 1222 (E.D. Mich. 1994) and other 
pre-Kazarian federal district court decisions rather than Kazarian and binding users policy guidance. 
We determined that the Petitioner's assertions were not persuasive, noting that the Buletini decision does 
not clearly conflict with the Kazarian court's characterization of the adjudication process as including 
a final merits determination. 
Finally, with regard to the Petitioner's motion to reopen, we noted that he did not present new facts in 
his brief or submit any documentary evidence in support of the motion. Accordingly, we determined 
that he did not show proper cause to warrant reopening. 
B. Motion to Reconsider 
With the current motion, the Petitioner submits a brief in which he once again criticizes users policy 
guidance related to the adjudication of extraordinary ability immigrant petitions 1 and rejects our 
reliance on Kazarian as a basis for conducting a multi-part analysis that includes a final merits 
determination. Specifically, the Petitioner asserts that we imposed requirements not found in the 
statutory language by requiring the Petitioner to demonstrate his eligibility within a final merits 
analysis in our appellate decision after determining that he met three of the initial evidentiary criteria. 
The Petitioner, however, does not articulate a claim that we misapplied this policy in our adjudication 
of his prior motion to reconsider. Rather, he maintains that we erred in our adjudication of the prior 
motions, and the underlying appeal, by adhering to Kazarian and applicable users policy and asserts 
we should have looked to the reasoning in Buletini and other pre-Kazarian federal district court 
decisions in adjudicating our prior decisions. 
1 Current USCIS policy guidance governing extraordinary ability classification can be found at 6 USC1S Policy Manual 
F .2(B)(2), https://www .uscis.gov/policy-manual/volume-6-part- f-chapter-2. 
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The Petitioner asserts that we misinterpreted the Ninth Circuit decision in Kazarian, as that decision 
only mentioned a second step in adjudicating petitions for individuals of extraordinary ability, the final 
merits determination, in dicta. The Petitioner argues that the proper analysis we should have applied 
was set forth in Buletini, a district court decision. The court in Buletini stated: 
Once it is established that the alien's evidence is sufficient to meet three of the criteria 
listed in [the regulation], the alien must be deemed to have extraordinary ability unless 
the INS sets forth specific and substantiated reasons for its finding that the alien, despite 
having satisfied the criteria, does not meet the extraordinary ability standard. 
Buletini, 860 F. Supp. at 1234. Here, the Petitioner asserts that since he met at least three of the 
required criteria, he had demonstrated his extraordinary ability by a preponderance of the evidence, 
and argues that under Buletini , "it is the burden of USCIS to show, by competent and substantial 
evidence, that that the petitioner is nevertheless ineligible for the benefit sought." 
The Petitioner's assertions are not convincing . While the court expressed the requirement that USCIS 
explain its reasons, it does not suggest the overall burden of proof shifts to USCIS. 2 In visa petition 
proceedings, the burden of proof rests with the Petitioner. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Skirball Cultural Ctr., 25 I&N Dec. 799, 806 (AAO 2012). Moreover, the court in Buletini 
did not reject the concept of evaluating the quality of the evidence at any time, and thus did not reject 
the possibility of a final merits determination. To the contrary, the court implicitly assumed some sort 
of final merits determination . It did not say that an officer was required to find extraordinary ability 
once they found the three initial evidentiary criteria satisfied. Rather, it said that, in such a case, the 
officer must explain their reasons if they ultimately find extraordinary ability is lacking, stating that 
that legacy INS, now USCIS, may deny a visa petition when it "sets forth specific and substantiated 
reasons for its finding that the alien, despite having satisfied the criteria, does not meet the 
extraordinary ability standard." Buletini , 860 F. Supp. at 1234. Thus, contrary to the Petitioner's 
assertions, Buletini and Kazarian are not in conflict. 
The Petitioner also asserts that we erred in not incorporating the analysis from other district court cases 
that preceded Kazarian, such as 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), Grimson v. INS, 934 F. Supp. 965 
(N.D. Ill. 1996), Russell v. INS, 2001 U.S. Dist. LEXIS 52 (E.D. Ill. Jan. 4, 2001) and Gulen v. 
Chernoff, 1980 U.S. Dist. LEXIS 54607 (E.D. Pa. Jul 16, 2008). As noted in our prior decision, we 
are not bound to follow the published decisions of a United States district court in cases arising within 
the same district, in contrast to the broad precedential authority of the case law of a United States 
circuit court (such as with Kazarian). See MatterofK-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. Ultimately , the 
subsequent reasoning of a circuit court decision outweighs the reasoning of an earlier district court 
decision. Significantly, the Kazarian court cited Buletini for the nature of the individual's 
achievements in that case. Thus, the Kazarian court was aware of the decision in Buletini and still set 
forth a two-step procedure . 
2 See also Muni v. JNS, 891 F. Supp. 440, 443 (N.D. Ill. 1995) (including a "Totality of the Evidence " section that, like 
Buletini , requires USCIS to explain why evidence that meets three criteria does not establish eligibility , while not 
suggesting the burden shifts to USCIS) . 
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The legal citations offered by the Petitioner do not establish that our latest decision was based on an 
incorrect application of law, regulation, or USCIS policy, or was incorrect based on the evidence of 
record at the time of the decision. 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. 
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. 
§ 103.5(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. 
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 reopen and motion to reconsider. 
The motions 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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