dismissed EB-1A Case: Film Director And Writer

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,, ·. . u:s. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washinl!lon. DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: Office: NEBRASKA SERVICE CENTER Fll..E: 
FEB 2 0 2013 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Ali~n of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that y~u wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 c:F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
DlDJJnfA-J . . 
n Rosenberg 
Acting Chief, Administrative Appeals Office 
www .uscis.gov 
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DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Nebraska Service Center. The Administrative Appeals Office (AAO) dismissed a subsequent 
appeal. The matter is now before the AAO on a motion to reopen. The motion will be dismissed, 
the previous decision of the AAO will be affirmed, and the petition will remain denied,. 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(l)(A) of the Immigration and Nationality Act (the. Act), 8 U.S.C. § 1153(b)(1)(A), as an 
alien of extraordinary ability as a film director and writer. Congress set a very high benchmark 
for aliens of extraordinary ~bility by requiring through the statute that the petitioner demonstrate the 
alien's "sustained national or international acclaim" and present "extensive documentation" of the 
alien's achievements . See section 203(b)(l)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). U.S. 
Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization Service 
(INS) have 
consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101
51 
Cong., 2d 
. Sess. 59 
(1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). 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. /d. and 8 C.F.R. _§ 204.5(h)(2). The implementing regulation at 8 C.F.R. 
§ 204.5(h)(3) states that an alien can establish sustained national or int~mational acclaim through 
evidence of a one.:time achievement of a major, internationally . recognized award: Absent the 
receipt of such an award, the regulation outlines ten categories of specific objective evidence. 8 
C.F.R. § 204.5(h)(3)(i) through (x). The petitioner must submit qualifying evidence under at least 
three of the ten regulatory categories of evidence to establish the basic ·eligibility requirements. 
In the August 15, ·2012 decision of the AAO dismissing the petitioner's appeal, the AAO found 
that the petitioner had failed to establish that he meets at least three of the regulatory categories · 
of evidence pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). The AAO specifically discussed 
the petitioner's claimed eligibility for the published material criterion pursuant to the regulation 
at 8 C.F.R. § 204.5(h)(3)(iii), the original contributions of major significance criterion pursuant 
to the regulation at 8 C.F.R. § 204.5(h)(3)(v), and the leading or critical role criterion pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3)(viii) and determined that he failed to establish his 
eligibility. The AAO therefore concluded that the petitioner had failed to satisfy the antecedent 
regulatory requirement of three categories of evidence. . 
According to 8 C.F.R . § 103.5(a)(2), a motion to reopen must state the new facts to be provided and 
be supported by affidavits or other documentary evidence. 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 (1992)(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. 
On motion, the petitioner submits a letter from counsel and additional evidence. Counsel states: 
"[The petitioner] was devastated when he heard of the dismissal of his appeal and requested we 
file the instant motion to reopen . He has provided us with additional evidence 
he wishes to 
. submit as further evidence of his eligibility for the chtssification requested." Counsel does not 
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explain how the specific documentary evidence that the petitioner submits on motion supports a 
finding of eligibility. 
The petitioner ~ubmits the following documentation: 
1. An undated photograph of 
2. An undated photograph of the petitioner ·posing with 
3. A copy of the petitioner's book 
2012; 
4. A copy of the synopsis of the script-novel 
5. An August 23, 2012 article in entitled 
dated June 26, 
6. Information indicating that" ~ is a Korean language newspaper published in 
eight metropolitan areas in the United States (including Los Angeles); 
7. Internet screenshot showing that is available for 
purchase on Amazon.com (the accompanying "Book Description" lists a "Publication 
Date" of ); and 
8. Recent "Google Search" results for the petitioner's name. 
A motion to 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 is found to be evidence that was not available and could not have been discovered or 
presented in the previous proceedi~g. 1 . 
. . . 
With regard to items 1 and· 2 above, the petitioner's motion ·does . not indicate the specific 
category of evidence at 8 C.F.R. § 204.5(h)(3) to which the photographs apply. Moreover, a 
review of the evidence that the petitioner submits on motion reveals no fatt that could be 
considered "new" under 8 C.F.R. § 103.5(a)(2). In addition, the petitioner has 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 evidence demonstrating his 
eligibility: at the time of the original filingofthe petition on August 31, 2010, in response to the 
director's December 22, 2010 request for additional evidence; and at the time of the filing of the 
1 The word "new" is defined as "I. having existed or been made for only~ short time . . . 3. Just discovered, found, or 
learned <new evidence> . . .. " WEBSTER'S II NEW RivERSIDE UNIVERSITY DICTIONARY 792 (1984)(emphasis in 
original). 
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appeai on July 15, 2011. A review ofthe evidence that the petitioner submits on motion reveals 
ilo fact that could be considered "new" under 8 C.F.R. § 103.5(a)(2) and, therefore, carmot be 
considered a proper basis for a motion to reopen. · 
. 
Moreover, regarding items 3.- 8 . above, this documentary evidence post-dates the petition's 
August 31,2010 filing date. Counsel states: 
[The petitioner] requested that we make clear that ... he is on the verge of realizing full 
length motion picture projects"""" written and developed by [the petitioner] -which are to 
be directed and produced by him in association with well-known ,companies and 
individuals in the Hollywood motion picture industry. 
There is no evidence showing that full-length motion picture films written and developed by the 
petitioner had been released at the time of filing. While a motion to reopen must be supported by 
affidavits or other documentary evidence, the documentation must be about events .occurring 
·before or at the time of the filing of the petition. As previously discussed in the AAO's appellate 
decision, 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'l Comm'r 1971). A petition cannot be approved at 
a future date after the petitioner becomes eligible under a new set of facts. Matter of /zummi, 22 
I&N Dec. 169, 175 (Comin'r 1998). That decision further provides, citing Matter of Bardouille, 
18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only 
subsequent to the filing of a petition;'' /d. at 176. 
The petitioner's motion fails to identify any new facts and is unsupported by documentary evidence 
to overcome the grounds underlying the AAO's August 15, 2012 decision. Once again, counsel 
fails to specify the categories of evidence at 8 C.F.R. § 204.5(h)(3) that the petitioner purportedly 
meets and how the submitted evidence pertains to those specific criteria. Moreover, the instant 
motion does not contain the statement about whether or not the validity of the unfavorable 
decision has been or is the subject of any judicial proceeding as required by the regulation at 
8 C.F.R. § 103.5(a)(l)(iii)(C). Accordingly, for the aforementioned reasons, the motion is 
dismissed . . 
ORDER: The motion to reopen is dismissed, the AAO's August 15, 2012 decision Is 
affirmed, ·artd the petition remains denied.