dismissed EB-1A Case: International Construction Economics

(b)(6)
., 
; u; ~. DepartJiient of Homeland Security . ' 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, , DC 20529"2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: 
APR 2 9 2013 
Office: NEBRASKASERVICE CENTER FILE: 
INRE: Petitioner: 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as an Alien· 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 th~t 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 you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Formi-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 tile 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 reppen. · · 
Thank you, 
.A)j)~Y1~ J . .. 
rRon Rosenberg 
1' Acting Chief, Administrative Appeals Office 
·: 
! • : . 
(b)(6)
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition. The Administrative Appeals _Office (AAO) dismissed a subsequent appeal. The 
matter is now b~fore the AAO on a motion to reopen and a motion to reconsider. The motions will 
be dismissed, the previous decision· of the AAO will be affirm~d, and the petition will remain 
denied. 
The petitioner seeks classification as an employment-based immigrant_ pursuant to section 
203(b)(1)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(A), in 
"International Construction Economics." The AAO, in its December 18, 2012 dismissal, 
determined that the petitioner had previously attempted or conspired to enter into a marriage for the 
purpose of evading the immigration laws; therefore the petition was precluded frOm approval 
pursuant to the marriage fraud provisions of section 204(c) of the Act. Moreover, theAAO found 
that the petitioner failed to establish that she met at least three of the regulatory criteria pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3). Although the AAO determined that the petitioner met the 
leading or critical role criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii), the AAO 
found that the peti_tioner failed to meet the awards criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(i), the membership criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ii), 
-t~e judging criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iv), the original 
contributions criterion pursuant tp the regulation at 8 C.F.R. § 204.5(h)(3)(v), and the high salary 
criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(ix). It is noted that the petitioner did 
not -claim to meet -the published material criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii), the scholarly articles criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(vi), - the artistic display criterion - pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(vii), and the commercial successes criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(x). 
'counsel for 'the petitioner filed Forin I-290B, Notice of Appeal or Motion, on January 17, 2013. On 
motion, counsel claims that the AAO's decision was confusing because of its use of the term 
"petitioner," because -the Freedom of Information Act (FOIA) request was "censored" and 
incomplete; and because it was "impossible"_ to respond to an allegation of a sham marriage, that 
occurred seven years earlier: As sucl_l, on motion, couns~l requests: 
r 
[T]he government: (1) provide [the petitioner] with a complete copy of its file 
regarding her marriage, (2) atlow an additional 30 to 60 days to locate witnesses and 
documentaiy evidence showing the bona fides of [the petitioner's] marriage, so that 
[the petitioner] may continue with her life. 
At the outset, in order to properly file a motio~; 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 ~e- 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." In this case, counsel failed to submit a 
statement regarding if $e· validity of the-decision of the AAO has been or is subject of any judicial 
proceeding. -
1 
Notwithstanding the above, the AAO fmds ,the petitioner has failed to establish that the filing me~ts 
the requirements of a motion to reopen or reconsider. 
(b)(6)
.. 
Page 3 
Regarding the AAO's terminology, counsel claims: 
[The AAO's decision] continued to call -''the petitioner in both cases and 
while this was correct in the self-petitioned 1-140, it was very confusing. In the 
AAO's decision regarding the marriage case, wherein continued to be 
called both "petitioner" and "petitioner". [sic] 
In order to have a consistent and clear decision, the AAO referenced as "the petitioner" 
regardless of whether the decision referred to as the self-petitioner on the instant 
employment~based petition or as the spouse who ~as petitioned for on the family-based petition. In 
fact, the AAO always referenced former spouse as either ::lf . 
A review of both the AAO's notice of intent to dismiss (NOID) the appeal issued on 
May 22, 2012, and the AAO's d~smissal issued on December 18, 2012, reflects that both decisions 
contained consistent and clear terminology in reference to and her former spouse. Even if 
the AAO were persuaded by counsel's argument, counsel has offered no specific example as to 
what issue she was unable to properly respond to in the AAO's notice of intent to dismiss or on 
·motion because of the "confusion" regarding the AAO's terminology. 
Regarding counsel's claim that the FOIA request was "censored" and incomplete, counsel 
submitted no documentation to support her claims on motion. The unsupported statements of 
counsel on appeal or in a motion are not evidence and thus are not entitled to any evidentiary 
weight. See INS v. Phinpathya, 464 U.S. 183, 188-89 n.6 (1984). Regardless, 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). Moreover; 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 U.S. Citizenship and Immigration (USCIS) policy. 8 
C.F.R. § 103.5(a)(3). Rather than supporting the motion to reopen with affidavits or other 
documentary evidence or supporting the motion to reconsider with any pertinent precedent 
decisions, counsel requests that the AAO provide the petitioner ''with a complete copy of its file 
regarding her 
marriage." 
Although counsel argues that her response to the allegations of marriage fraud was hindered due to 
the FOIA "censorship" of several pages of officer notes, the majority of the NOID was based not on 
findings from the marriage question and answer interview, but rather inconsistencies in and a lack 
of documentation. The AAO's NOID contained a detailed description of the deficiencies in the 
evidence, . such as inconsistencies m claimed joint residences and a lack of joint financial 
documentation. 
After issuance of the NOID, the AAO received a letter from counsel requesting additional time to 
respond to the notice because of a pending FOIA request. A review of the record of proceeding 
reflected that FOIA completed ci>unsel's request on September 21, 2012,however counsel failed to 
re~pond to the AAO's notice, and the appeal was dismissed on December 18, 2012. Counsel had 
the opportunity to raise these issues in response to the AAO's NOID but failed to do so. 
Despite being on notice of these issues and failing to timely respond to them, on motion counsel 
again requests additional time to locate witnesses and submit additional documentary evidence. The 
(b)(6)
Page4 
regulation at 8 C.F.R. § 103.3(a)(2)(vii} allows for limited circumstances in which a petitioner can 
supplement an already-submitted appeal. This regulation, however, applies only to appeals, and not 
to motions to reopen or reconsider. There is no analogous regulation which allows a petitioner to 
· submit new evidence in furtherance of a previously-filed motion. 
Similarly, the instructions to the Form I-290B provide that unlike appeals, moti~ns may not be 
supplemented and specifically state that all evidence "must be submitted. with the motion." The 
Form I-290B itself contains six boxes, one of which the petitioner must check to indicate whether 
the petitio_ner is filing an appeal or motion. Of the three boxes that pertain to motions, all indicate 
that the brief and/or additional evidence is. "attached." to the motion. The form contains no 
provision for the submission of briefs or evidence after the filing of the motion. Pursuant to the 
regulation at 8 C.F.R. § 103.2(a)(1), every benefit request must be executed and filed in accordance 
with form instructions which 
are incorporated into the·regulation. 
Again, the regulation at 8 C.F.R. § 103.5(a)(2)provides th~ta motion to reopen must state the new . 
facts to be provided and be supported by af:eydavits or other docinnentary evidence, and the 
regulation at 8 C.F.R. § 103.5(a)(3) provides that 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. The plain language of each 
regulation makes clear that submission of the supporting material and a legcil basis for. the motion is 
mandatory, not permissible. This language, combined with the form instructions and the form, 
explicitly 
require the motion to reopen and reconsider to be supported at the time of filing. There is 
no provision that allows for USCIS to grant an extension in order to await future correspondence 
that may or may not include evidence or arguments. 
More importantly, counsel's ·motion does not address the AAO's finding regarding the 
petitioner' sfailure to meet at least three of the ten regulatory categories of evidence to establish . 
the basis eligibility requirements pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). · Counsel 
does not contest the decision of the AAO or offer any additioncil arguments or evidence on 
motion regarding the petitioner's eligibility as an alien of extraordinary ability pursuant to 
section 203(b )(1 )(A) of the Act. 
The petitioner's motion does not meet the regulatory . requifements -of a motion to reopen or a . . 
motion to reconsider 
ORDER: The motion to reopen "and the motion to reconsider are dismissed, the decision of the 
AAO dated December! 18, 2012, is affirmed, and the petition remains denied.