dismissed EB-1A Case: Fashion Design

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 12, 2024 In Re: 34776158 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, a fashion designer, 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 Texas Service Center denied the petition, concluding that the Petitioner had not 
satisfied the initial evidentiary requirements set forth at 8 C.F.R. § 204.5(h)(3), which require 
documentation of a one-time achievement or evidence that meets at least three of the ten regulatory 
criteria listed under 8 C.F.R. § 204.5(h)(3)(i)-(x). We dismissed the Petitioner's subsequent appeal. 
The Petitioner then filed a combined motion to reopen and reconsider, which we dismissed because it 
was filed untimely. The matter is now before us on a motion to reopen. 
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 the 
motion. 
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). 
As to the present motion, the Petitioner is requesting that her previous motion to reopen and reconsider, 
which was received in April 2024 and dismissed as untimely by one day, be reopened due to travel 
circumstances related to medical care. The Petitioner's combined motion was based on the dismissal 
of an appeal that included a request for additional time to submit a brief due to the same medical and 
travel circumstances. To support that request, the Petitioner submitted with her appeal a hospital 
certificate dated September 18, 2023, describing recommended treatment for a deviated septum. We 
note that the Petitioner did not submit a request concerning timeliness with her subsequent motion, 
which would have been the appropriate point at which to request that the late filing of her motion be 
considered timely. 
The Petitioner now submits the previously submitted hospital certificate, as well as a medical scan and 
other documentation concerning two medical appointments in April and June of 2023. In addition, 
the Petitioner submits a travel record showing that she departed the United States on September 12, 
2023, and returned on June 14, 2024. While the Petitioner asserts that the "extraordinary 
circumstances" of her absence from the United States rendered her "unable to effectively communicate 
with [her attorney's] office and provide the necessary evidence to support the previously dismissed I-
290B Motion in a timely manner," she has not specified how her absence delayed the filing of her 
motion or provided evidence to support her assertions. The Petitioner must support assertions with 
relevant, probative, and credible evidence. See Matter of Chawathe, 25 I&N Dec. at 376. The 
Petitioner has not submitted new facts, supported by documentary evidence, to warrant reopening her 
previous motion. 
The scope of a motion is limited to "the prior decision" and "the latest decision in the proceeding." 
8 C.F.R. § 103.5(a)(l)(i), (ii). Therefore, we will only consider new evidence to the extent that it 
pertains to our latest decision dismissing the motion to reopen and reconsider. Here, the Petitioner has 
not provided new facts to establish that we erred in dismissing the prior motion. Because the Petitioner 
has not established new facts that would warrant reopening of the proceeding, we have no basis to 
reopen our prior decision. We will not re-adjudicate the petition anew based on the present motion to 
reopen and, therefore, the underlying petition remains denied. 
Although not the basis for dismissal of the current motion, we note that even if the previously 
dismissed combined motion to reopen and reconsider had been timely filed, it would have been 
dismissed on the merits. On motion to reopen, the Petitioner submitted a brief that largely reiterated 
arguments presented in her appeal brief, with the exception of reference to a newly submitted article 
written about her in a magazine. The magazine's date of"March-April 2024" post-dates the petition's 
filing date of August 31, 2020, by approximately four years, and therefore could not serve as evidence 
to demonstrate her eligibility at the time of filing. 8 C.F.R. § I03.2(b )(I); see also Matter ofIzummi, 
22 I&N Dec. at 175 (Assoc. Comm'r 1998) (stating that a petition cannot be approved at a future date 
after the self-petitioner becomes eligible under a new set of facts). Because the motion to reopen did 
not include new facts or new evidence, the motion would not have met the requirements of a motion 
to reopen and would have been dismissed. We also note that the Petitioner's brief did not address any 
conclusions reached in our decision to dismiss the appeal, but repeated arguments against 
determinations made by the Director in denying her petition and subsequent motions filed with the 
Texas Service Center. The Petitioner only generally referenced her disagreement with the appeal 
decision without addressing the content of that decision. A motion to reconsider 1 is not a process by 
which a party may submit, in essence, the same brief previously presented and seek reconsideration 
by generally alleging error in the prior decision. Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). 
The Petitioner did not identify a law or policy that we incorrectly applied to the evidence of record in 
dismissing her appeal. Therefore, the motion would not have met the requirements of a motion to 
reconsider and would have been dismissed. 
1 A motion to reconsider must establish that our prior decision was based on an incorrect application of law or policy and 
that the decision was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. § 
103.5(a)(3). 
2 
In sum, we will dismiss the motion to reopen because the Petitioner has not established new facts that 
would warrant reopening of the proceeding. 
ORDER: The motion to reopen is dismissed. 
3