dismissed EB-1A Case: Ice Sculpting

DATE: DEC 1 7 2012 
IN RE: Petitioner: 
Beneficiary: 
Office: NEBRASKA SERVICE CENTER 
u.s. l)cpartmcnt or Homeland S('curity 
U.S. CitiLcnship and Immigration Services 
Administrative Appeals Olliec (AAO) 
20 Massachu~ells Ave .. N.W., MS 2090 
Washington, DC 20-"i29-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(1)(A) of the Immigration and Nationality Act, R U.S.c. * 1153(b)(1)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
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 decideu your case. Pleasc bc advised that 
any further inquiry that you might have concerning your case must bc madc to that officc. 
If you believe the AAO inappropriately applied the law in reaching 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 the instructions on Form 1-290B, 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)(1)(i) requires any motion to he filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~b~ 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. On April 20, 2012, the Administrative Appeals Office (AAO) summarily dismissed the appeal 
and affirmed the director's adverse decision on the petition. The matter is now before the AAO on a 
motion to reopen and reconsider. The motion will be dismissed. The previous decision of the AAO 
will be affirmed, and the petition will remain denied. 
As an initial matter, owner of the Fairbanks Ice Museum that seeks to hire the 
petitioner, signed the Form I-290B, Notice of Appeal or which reflects that the filing is a 
motion to reopen or reconsider. Along with the motion, submits: (I) a Form G-28, Notice 
of Appearance as Attorney or Accredited Representative, attesting that he is entering an appearance as a 
representative at the of the petitioner and (2) a statement in support of the motion. The AAO 
observes that failed to complete Part 2 of the Form G-28: "Information about Attorney 
of Accredited Representative." The regulations outlining the requirements for representation of others, 
provides that a person entitled to representation may be represented by: (1) attorneys in the United 
States; (2) law students and law graduates not yet admitted to the bar; (3) reputable individuals; (4) 
accredited representatives as described in 8 C.F.R. § 292.2; or (5) accredited officials. 8 C.F.R. 
§ 292.1(a). Because is not an attorney, a law student, an accredited representative, or 
an accredited official, the AAO infers that he is seeking to represent the petitioner as a reputable 
individual. The regulation at 8 C.F.R. § 292.1(a) states: 
(3) Reputable individuals. Any reputable individual of good moral character, provided 
that -
(i) He is appearing on an individual case basis, at the request of the 
person entitled to representation; 
(ii) He is appearing without direct or indirect remuneration and files a 
written declaration to that effect; 
(iii) He has a pre-existing relationship or connection with the person 
entitled to representation (e.g., as a relative, neighbor, clergyman, 
business associate or personal friend), provided that such requirement 
may be waived, as a matter of administrative discretion, in cases where 
adequate representation would not otherwise be available; and 
(iv) His appearance is permitted by the DHS official before whom he or 
she seeks to appear, provided that such permission will not be granted 
with respect to any individual who regularly engages in immigration and 
naturalization practice or preparation, or holds himself out to the public 
as qualified to do so. 
Page 3 
has failed to file a written declaration stating that he is appearing on behalf of the 
petitioner without direct or indirect remuneration. Consequently, he cannot appear before the AAO as a 
representative on behalf of the petitioner. 
The regulation at 8 CF.R. § 103.3(a)(I)(iii) states, in pertinent part: 
(8) Meaning of affected party. For purposes of this section and §§ !O3.4 and !O3.5 of 
this part, affected party (in addition to the Service) means the person or entity with legal 
standing in a proceeding .... An affected party may be represented by an attorney or 
representative in accordance with part 292 of this chapter. 
Since as noted above, cannot appear before the AAO as a representative, he has no 
legal standing in these proceedings to submit a Form 1-2908 bearing his signature instead of the 
petitioner's and file a motion to reopen and reconsider on behalf of the petitioner. Therefore, the motion 
has not been properly filed and can be dismissed on that basis. 
In the alternative, even assuming arguendo, that the motion should not be rejected and the AAO accepts 
all the documents submitted along with the motion and Form G-28, dismissal of the motion is proper on 
multiple grounds. Regarding motions to reopen or reconsider, 8 CF.R. § 103.5(a)(1 )(ii) states in 
relevant part: "The official having jurisdiction is the official who made the latest decision in the 
proceeding unless the affected party moves to a new jurisdiction." The latest decision was the AAO's 
April 20, 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 CF.R. § 103.5(a)(I)(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:' Furthermore, the regulation at 8 CF.R. ~ 103.5(a)(4) requires that "[a] motion that docs 
not meet applicable requirements shall be dismissed." In this case, the petitioner failed to submit a 
statement regarding whether 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 CF.R. § 103.5(a)(4). 
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. Dohan', 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. Ablldll, 485 U.S. at 110. 
In the statement supporting the motion, petitioner suggests that his ability to establish his eligibility 
as an alien of extraordinary ability pursuant to section 203(b)(1)(A) of the Immigration and 
Nationality Act (the Act), 8 U.S.C § 1153(b)(I)(A), was impaired by the ineffective assistance of 
his former counsel. However, an alien making an ineffective assistance of counsel claim must comply 
Page 4 
with the requirements set forth by the Board of Immigration Appeals (BIA) in Matter of Lozada, 
19 I&N Dec. 637 (BIA 1988). The Lozada decision requires the submission of: 
1. An affidavit setting forth in detail the agreement with former counsel concerning what action 
would be taken and what counsel did or did not represent in that regard; 
2. Proof that the alien notified fanner counsel of the allegations in the ineffective assistance of 
counsel claim and allowed counsel an opportunity to respond; and 
3. If a violation of ethical or legal responsibilities is claimed, a statement as to whether the alien 
has filed a complaint with the disciplinary authority regarding counsel's conduct or, if a 
complaint was not filed, an explanation for not doing so. 
Matter of Lozada, 19 I&N at 639. The petitioner has not met any of the procedural requirements of 
Lozada. Thus, he has failed to properly make an ineffective assistance of counsel claim. The BIA has 
reasoned that the high procedural standard is necessary to have a basis for assessing the substantial 
number of claims of ineffective assistance of counsel and where essential information is lacking, it is 
impossible to evaluate the substance of such a claim. See Matter of Lozada, 19 I&N at 639. The 
petitioner's ineffective assistance of counsel claim, therefore, cannot be a basis for reopening. 
A motion to reopen, furthermore, 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 proceeding.! The record reflects that USCIS has afforded the petitioner prior 
opportunities to present evidence in support of his visa petition. The petitioner failed to respond to the 
Director's Request for Evidence (RFE) and his fanner counsel did not submit a brief or accompanying 
evidence on appeal on behalf of the petitioner, as she indicated she would do on the Notice of Appeal. 
Nonetheless, the previous AAO decision fully considered the fanner counsel's arguments relating to her 
failure to respond to the RFE and no explanation or any supplemental documentation were proffered f()f 
the failure to file the appeal brief. Thus, the petitioner's missed opportunities cannot be a basis I,x 
reopening. Furthennore, the "new evidence" that the petitioner now submits, including his resume. 
some newspaper clippings and photos, could have been discovered and presented in previous 
proceedings. As for Ice Alaska's 10 Year Development Plan. the statement in support of the motion 
acknowledges that the petitioner "has yet to become actively involved in Icc Alaska' s 10-Year 
Development Plan" and, thus, such evidence lacks probative value relative to the petitioner's eligibility 
as of the priority date in this matter, July 12, 2010. The petitioner must establish his eligibility as of that 
date. See 8 C.F.R. §§ 103.2(b)(I), (12); Matter of Katigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
I The word "new" is defined as "I: having recently come into existence: iZhl'Cl, \IUI 11\ 2a (1): having 
been seen, used, or known for a short time : \()\ II <rice was a new crop for the arca> ." 
hLHlJI~y.~~,w: .. J]J~rrial1l-wehster.col11/dictiol1arv/nc\v, accessed on Novemher 13, 2012. 
Page 5 
A review of the evidence that the petitioner submits on motion reveals no fact that could be considered 
"new" under 8 C.F.R. § 103.5(a)(2) and, therefore, the evidence cannot be considered a proper basis for 
a motion to reopen. 
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 USClS 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 of Cerna, 20 I&N Dec. 399, 403 (BIA 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 should 
flow from new law or a de novo legal determination reached in its decision that could not have been 
addressed by the party. Further, 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 or must show how a change in law materially affects the prior 
decision. Matter of O-S-G-, 24 I&N Dec. at 60. 
In the present motion to reconsider, the petitioner fails to specifically allege any error of fact or law 
in the prior AAO decision. Instead, in the statement in support of the motion, the petitioner merely 
attempts to explain why he failed to capitalize on his opportunities to submit evidence and tries to re­
assert his eligibility as an alien of extraordinary ability under the implementing regulations. As 
noted above, a motion to reconsider must include specific allegations as to how the AAO erred as 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. 
For all the reasons discussed above, the motion will be dismissed. 
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 April 20, 2012 decision IS affirmed, and the 
petition remains denied.