dismissed EB-1A Case: Fine Arts

DATE: 
NOV L !J 2012 
IN RE: Pctitiolll:r: 
Beneficiary: 
OIlice: TEXAS SERVICE CENTER 
U.s. J)l'partment of Homeland Security 
US. ("iliL.t:n:-.hip (llld IllHnigraliull Scrvicc:-. 
;\dministraliv(' Appeals Olliec (,\;\0) 
20 Ma:-.~achuselb Avc., N W., MS 2090 
Washingtun, D(' 10::i2<J .. 2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Pctition fDr Alien Workcr as an Alien of Extraordinary Ahilily Pursuant to Section 
203(h)( I )(A) of the Immigration and Nationality Act, 8 U.S.c. § Il53(b)( I)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Encloscd plcase find the decision Df the Administrative Appeals Office in your casco All Df the documents 
related to this matter have been returned to the office that originally decided your casco Please he advised that 
any further inquiry that YDU might have concerning your case must be made to Ihat office. 
If you helieve the AAO inappmpriately applied the law in rcaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with thc instructions on Form 1-29013, Notice of Appeal or Motion, wilh a fee of $630. The 
specific requin:ments for filing such a motion can he found at H C.F.R. ~ 103.5. Do not tile any motion 
directly with the AAO. Please hc aware that 8 C.F.R. § 103.5(a)(I)(i) requires any motiDn to he filed wilhin 
30 days of the deci:.,jon that the motion seeks to reconsider or reopen. 
Thank you, 
R''''R'~ $~ 
Acting Chid. Administrative Appeals Offiee 
www.uscis.gov 
-Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on March 7, 2011, On appeal, the Administrative Appeals Office (AAO) affirmed the 
director's adverse decision on the petition on June 15,2012. The matter is now before the AAO on a 
motion to reopen or reconsider. The motion will be dismissed. The previous decision of the AAO will 
be affinned, and the petition will remain denied. 
Regarding motions to reopen or reconsider, 8 C.F.R. § 103.5(a)( 1 )(ii) states in relevant pm1: 'The 
official having jurisdiction is the official who made the latest decision in the proceeding unless the 
al"tected party moves to a ncwjUlisdiction." The latest decision was the AAO's June 15,2012 decision 
dismissing the appeal. Therefore, a review of any claims or assertions that the petitioner's motion raises 
is limited in scope and is restricted to the AAO's prior decision. In addition. to properly file a motion, 
the regulation at 8 C.F.R. § 103.5(a)( 1 )(iii) requires that the motion must be "laJccompanied 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 "Ia] motion that does not meet 
applicable requirements shall be dismissed." In this case, the petitioner failed to submit a statement 
regarding whetber the validity of the AAO's decision has been. or is, the subject of any judicial 
proceeding. The regulation mandates that this shortcoming alone requires U.S. Citizenship and 
Immigration Services (USCIS) to dismiss the motions. See 8 C.F.R. * 103.5(a)(4). 
Notwithstanding the fatal defect noted above, the AAO will consider the petitioner's motion and 
accompanying evidence. To the extent that the petitioner intends the current motion to be a motion to 
reconsider, 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 USCIS 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 oICerna, 20 I&N Dec. 
3<}9, 403 (EIA 1991). 
Moreover, a motion to reconsider cannot be used to raise a legal argument that could have been 
raised earlier in the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 
1991). Rather, the "additional legal arguments" that may be raised in a motion to reconsider sbould 
flow from new law or a de 110VO legal determination reached in its decision that could not have been 
addressed by the party. Furtber, 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. Matter of O-S-G-, 24 I&N Dec. 56, 58 (BIA 2(06). 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 Dr must show how a change in law materially affects the prior 
decision. Id. at flO. 
In the present motion to reconsider, the petitioner essentially maintains that the AAO made an error 
of fact. Specifically, the petitioner states in the Form 1-290B that she was erroneously judged 
against artists generally rather than against other artists in the "emerging and unique field of 
-Page 3 
expressionist painting." The petitioner further states that she is in the uppermost echelons of the 
"emerging and unique field." The petitioner advances for the first time in the current motion, the 
argument that she should be judged against a smaller, sub-category of visual artists who are in the 
same field. In Part 6 of the Form 1-140, the petitioner provided her job title as a "Fine Artist" and 
described it as a person who: ,.[ c jreates original artwork using any of a wide variety of mediums and 
techniques." The previous AAO decision considered the petitioner's appeal of the director's denial 
in light of the job title and description she provided. The issue of whether the petitioner falls within 
the small percentage at the top of her field is only relevant to a final merits determination. Kazarian 
v. USC/S, 596 F.3d IllS, 1121-22 (9th Cir. 2(10). As the petitioner did not submit qualifying evidence 
under at least three of the ten criteria set forth at il c.F.R. § 204.S(h)(3)(i)-(x), the AAO did not even 
conduct a final merits determination. Therefore, the AAO finds no factual error as alleged. As noted 
above, a motion to reconsider must include specific allegations as to how the AAO erred m, a matter 
of fact or law in its prior decision, and it must be supported by pertinent legal authority. 8 C.F.R. 
§ 103.5(a)(3); see Matter of Medrano, 20 I&N at 219; Matter of O-S-G-, 24 I&N Dec. at 58-60. 
Accordingly, the motion to reconsider will be dismissed. 
To the extent that the petitioner intends the current motion to be a motion to reopen, 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. f)ohertv, 502 U.S. 314, 
323 (1992)(citingINS v. A/mdll, 4X5 U.S. 94 (19ilil)). A party seeking to reopen a proceeding bears a 
'"heavy burden,'" INS v. Ahlldll, 4il5 U.S. at 110. A motion to reopen must state the new facts to be 
provided and be supported by affidavits or other documentary evidence. il 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 proceeding.' Along with the motion, the 
petitioner submitted the following documents: 
I. Certification 
2. A letter from 
3. A letter from 
Market; 
4. A letter from of the Beaufort Art A~sociation; 
5. A certificate from the Unilatina International College; 
6. A certificate of Participation for "'Friday ofTertulia," dated '/uly 15,20 II; and 
7. A certificate of completion for Advance Ministerial Studies, dated June 1. 2012. 
Petitioner fails to explain why any of the evidence submitted with this motion could not have been 
discovered or presented in the previous proceeding. The petitioner has been afforded at least three 
I The word "new" is detined as "1: having recently come into existence : j~1 ( I '-" f, \If Ii )L'I< ". 2a (1) : having 
heen seell, used, or known for a short time : \,(}\'i 1. <rice was a new crop for the area> .)) 
bJJP;Li~~~\'v".:!1H.:Hi:i!n~\V~.b_~J~L~DJ11/JficJi_Qn ~!.njD.~~, accessed on November 15, 2012. 
Page 4 
opportunities to submit evidence: at the time of the original petition filing on February 19. 2010. in 
response to the June 17,2010 director's request for additional evidence (RFE) pursuant to the regulation 
at 8 CF.R. § 103.2(b)(8), and at the time she filed the appeal on April 7, 2011. 
Item I from the above list shows the petitioner's record of study from the School of Plastic Arts, which 
was completed in July of 1999. Thus, item 1 was previously available for submission and the AAO 
need not consider it now as new evidence. Items 2 and 3 are from individuals who have known the 
~for a number of years and the record reflects that both and 
_ have previously wrillen lellers of support that were simil' 
petitioner now submits with her motion as "new" evidence. Likewise, 
item 4, has known the petitioner for and the petitioner has not provided an explanation 
for why the "new" evidence from was previously unavailable. FurthetTI1ore, the record 
reflects that another individual from the Beaufort Art Association, the same organization that _ 
_ represents, has previously submitted a letter of support for the petitioner. Where the petitioner 
was put on notice of required evidence and given a reasonable opportunity to provide it for the 
record before the denial, subsequently submitted evidence will not be considered for any purpose. 
See Mutter o(Soriullo, 19 I&N Dec. 764, 766 (BIA 1988). As for item 5 from the above list, it did 
not comply with the terms of 8 CF.R. § 103.2(b)(3), which provides that: "Any document 
containing foreign language submitted to USCIS shall be accompanied by a full English language 
translation which the translator has certified as complete and accurate, and by the translator's 
certification that he or she is competent to translate from the foreign language into English." 
Without a full certified translation pursuant to 8 CF.R. § 103.2(b)(3), this document has no 
probative value and the AAO will not consider item 5 as new evidence. Finally, nothing about items 
6 and 7 substantiates the petitioner's assertion that she is in the uppermost echelon of the emerging 
and unique field of expressionist painting. In addition, these two items do not help the petitioner 
qualify for additional regulatory criteria as a Fine Artist, as considered in the prior AAO decision. 
Thus, they do not constitute as relevant, probative, and credible evidence. See Malter oj' Chwuwthe, 
25 I&N Dec. 369. 376 (AAO 2(10). 
In conclusion, a review of the evidence that the petitioner submits on motion reveals no fact that could 
be considered "new" under 8 c.r.R. § 103.5(a)(2) and, therefore, cannot be considered a proper basis 
for a motion to reopen. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8 U.S.C § 1361. Here, the petitioner has not sustained that burden. Accordingly, the motion will 
be dismissed. 
ORDER: The motion is dismissed, the AAO's June 15,2012 decision is affirmed, and the petition 
remains denies.