dismissed EB-1A Case: Finance

U.S. Citizenship 
and Immigration 
Services 
MATTER OF N-V-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: FEB. 17,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an options market consultant and educator, 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)(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, Texas Service Center, denied the petition, concluding that the Petitioner had not 
satisfied the initial evidence requirements set forth at 8 C.F.R. § 204.5(h)(3), which requires 
documentation of a one-time achievement or exhibits that meet at least three of the ten regulatory 
criteria. We upheld that decision on appeal. 
The matter is now before us on a motion to reopen. On motion, the Petitioner offers new evidence, 
and maintains that he is eligible for the benefit sought. He states that the motion should be approved 
because "the case law and regulatory guidelines provide framework to assist in arriving at decisions 
which are consistent and fair, regardless of where the caseis adjudicated or by whom." 
Upon review, we will deny the motion. 
I. LAW 
Section 203(b) of the Act makes visas available to foreign nationals with extraordinary ability in the 
sciences, arts, education, business, or athletics as demonstrated by sustained national or international 
acclaim and achievements that 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 show sustained acclaim and the recognition of his or her 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 he or she must provide sufficient qualifying items that meet at 
least three of the ten categories listed at 8 C.F.R. §§ 204.5(h)(3)(i)-(x) (including items such as 
(b)(6)
Matter of N-V-
awards, published material in certain media, and scholarly articles). Satisfaction of at least three 
criteria, however, does not, in and of itself, establish eligibility for this classification. 1 
A motion to reopen must state the new facts to be provided and be supported by affidavits or other 
documentation? As explained further below, however, the new facts must demonstrate eligibility as 
of the date of filing; a petition cannot be approved at a future date after a petitioner becomes eligible 
under a new set of facts. 3 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.4 A party seeking to reopen a proceeding bears a "heavy burden."5 
II. ANALYSIS 
The Petitioner claims he is eligible as an individual of extraordinary ability based on his association 
memberships, original contributions, leading or critical role, judge of the work of others, evidence of 
commercial success in performing arts, and high salary. The Director found that the Petitioner had 
not submitted evidence of either a one-time achievement or documents that meet at least three of the 
ten criteria listed at 8 C.F.R. §§ 204.5(h)(3)(i)-(x). We affirmed the Director's decision, considering, 
in depth, the Petitioner's evidence relating to each criterion. 
The Petitioner offers additional evidence on motion. Specifically, the Petitioner submits a job offer 
and proposed compensation plan dated September 8, 2015, from his 
personal earnings statements dated June, July, and August of 2016, and his personal income tax 
return for 2015. Additionally, the Petitioner submits evidence that he passed the December 2015 
the May 2015 
the October 2015 
and the 
of December 2015 and of March 2016. The 
Petitioner also provides copies of his July 2015 email correspondence with a job recruiter. None of 
the evidence submitted on motion pertains to the Petitioner's accomplishments prior to the date of 
filing, April 4, 2014. The regulation at 8 C.F.R. § 103.2(b)(l) states: "An applicant or petitioner must 
establish that he or she is eligible for the requested benefit at the time of tiling the benefit request." See 
I See Kazarian v. users, 596 F.3d 1115 (9th Cir. 20 I 0) (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 detennination); 
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.O. 
Wash. 2011); Matter o.fChawathe, 25 I&N Dec. 369,376 (AAO 2010) (holding that the "truth is to be determined not by 
the quantity of evidence alone but by its quality" and that USCIS examines "each piece of evidence for relevance, 
probative value, and credibility, both· individually and within the context of the totality of the evidence, to determine 
whether the fact to be proven is probably true"). 
2 8 C.F.R. § 103.5(a)(2). 
3 8 C.F.R. § I 03.2(b)(l ), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'! Comm'r 1971 ); see also Matter oflzummi, 
22 I&N Dec. 169, 175 (Assoc. Comm'r 1998) adopting the holding in Matter of Bardouille, 18 I&N Dec. 114 (BIA 
1981 ), that USC IS cannot "consider facts that come into being only subsequent to the filing of a petition." !d. at 176. 
4 INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U,S. 94 (1988)). 
5 !d. at II 0. 
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Matter of N-V-
also 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). As we 
are governed by the above regulations and precedent, we do not have the discretion to consider the 
Petitioner's evidence of post-filing accomplishments as evidence of his eligibility. 
We also note that, 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." The Petitioner does not submit the required 
statement on motion. 
III. CONCLUSION 
The motion does not contain evidence of new facts that support eligibility at the time of filing. 
Accordingly, the motion will be denied. 
ORDER: The motion to reopen is denied. 
Cite as Matter of N-V- ID# 149451 (AAO Feb. 17, 201 J) 
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