dismissed EB-1A Case: Law

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-T-
. Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: AUG. 22, 2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM I-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a lawyer, 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)(l)(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 of the Texas Service Ceriter denied the petition. The Director concluded that the 
Petitioner had not satisfied the initial evidence requirements set forth at 8 C.P.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 and reaffirmed our findings in seven 
subsequent motion decisions. 
The matter is now before us on an eighth motion, a joint motion to reopen and reconsider. In his 
current motion, the Petitioner offers new evidence and maintains that it is self-evident that he 
performed a leading or critical role for a qualifying organization as of the date of filing and that we 
erred by not considering events that occurred after that date. 
Upon review, we will deny both motions. 
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.P.R. § 204.5(h)(2). The implementing regulation 
at 8 C.P.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.P.R. § 204.5(h)(3)(i)- (x) (including items such as awards, published material in certain 
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Matter of H-T-
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.2 · As noted in our previous decisions and 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 
A motion to reconsider must offer 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 Services (USCIS) policy.6 A motion to reconsider is based on the 
existing record and the Petitioner may not introduce new facts or new evidence relative to his or her 
arguments. 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 
materials. 7 
II. ANALYSIS 
The Petitioner is a lawyer specializing in international law. As previously acknowledged, the 
Petitioner has served as the judge of others. Specifically, he judged the round 
of the 
Therefore, he meets one criterion.lS The Petitioner proposes that he also meets the 
scholarly articles criterion9 and the leading or critical role criterion.10 We explained in prior 
decisions that the Petitioner's thesis did not appear in a professional or major trade publication or 
1 See Kazarian v. USC!S, 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 determination) ; 
see also Visinscaia v. Beers, 4 F . Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USC!S, 772 F. Supp. 2d 1339 (W.O. 
Wash . 2011 ); Matter ofChawathe, 25 I&N Dec. 369 , 376 (AAO 201 0) (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. § 103.2(b)(l), (12) ; Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'! Comm'r 1971); see also Matter of!zummi, 
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 USCIS 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 110. 
6 8 C.F.R. § 1 03.5(a)(3). 
7 Compare 8 C.F.R. § 103.5(a)(3) and8 C.F.R. § 103.5(a)(2). 
8 8 C.F.R. § 204 .5(h)(3)(iv) . 
9 8 C.F.R. § 204 .5(h)(3)(vi). 
10 8 C.F.R. § 204.5(h)(3)(viii) . 
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Matter of H-T-
other major media and that he published his other article after the date of filing. We have further 
considered in depth the Petitioner's evidence 
relating to his role as an "Additional Representative" to 
the for the concluding that this 
responsibility did not meet the plain language requirements of this criterion. 
In support of the motion to reconsider, the Petitioner contends that, because first preference visas are 
current, he need not show eligibility -as of the date of filing. As part of his motion to reopen , the 
Petitioner offers new exhibits relating to the The Petitioner has not met the 
requirements of a motion or established eligibility for the benefit sought. The case law he cites does 
not support his position and the new evidence does not overcome the concerns that we have raised 
and reiterated in our previous decisions. 11 
A. Motion to Reconsider 
In this motion, the Petitioner's primary contention of legal error is that the regulations at 8 C.F.R. 
§ 103.2(b)(1), (12) and case law, namely Katigbak , 14 I&N Dec. at 49, do not apply in this matter 
because the visas for the first preference classification are current, 12 and because the Petitioner has filed 
a new 
petition and could file an even newer one. 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 
filing the benefit request." When a Petitioner responds to a request for evidence, the response must 
demonstrate eligibility at the time of filing. 8- C.F.R. § 103.2(b)(12). Neither of these provisions is 
limited to classifications that are not current. While Katigbak does express concern with securing a 
priority date prior to eligibility, the concept of eligibility at the time of filing is not limited to petitions 
for visa classifications with priority dates. Specifically, petitioners seeking nonimmigrant visas, which 
do not have priority dates, must exhibit the beneficiaries ' eligibility as of the date of filing. Matter qf 
Michelin Tire Corp., 17 I&N Dec. 248 (Reg'l Comm'r 1978). Accordingly, the Petitioner has not 
shown that we erred as a matter oflaw by not considering the Petitioner's achievements after the date of 
filing. Rather, both regulations and precedent decisions support our legal conclusions. 
With respect to the newer, pending petition, it is under the jurisdiction of the Director, and its filing 
does not give us the discretion to consider the Petitioner's evidence of post-filing accomplishments 
in the context of motions on the petition before us. It remains that the Petitioner can best seek 
review of his new accomplishments by pursuing his subsequent petition .rather than by filing 
additional motions on this petition that caruiot cure concerns about eligibility at the time of filing. 
11 The filing of multiple motions is disfavored as it can lead to any unnecessary expenditure of government resources. 
Cf Doherty, 502 U.S. at 323 (citing Abudu, 485 U.S. at 108; see also Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir. 
2004). 
12 A "current" listing on the U.S. State Department's visa bulletin manes that numbers are authorized for issuance to all 
qualified applicants. See https ://travel.state.gov /content /visas/en/law-and-policy/bulletin /20 16/visa-bulletin-for-august-
2016 .html. 
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Matter of H-T-
Finally, in our previous decisions, we discussed the documentation and law at length and detailed 
our reasoning. The Petitioner relies on Tongatapu Woodcraft Hawaii Ltd. v. Feldman, 736 F.2d 
1035, 1308 (9th Cir.) for the proposition that our prior decisions were an abuse of discretion. That 
decision, however, reviewed the revocation of the approval of a petition, not a denial as is the case in 
this matter. The court noted that it could set aside an agency decision that is arbitrary, capricious, or 
an abuse of discretion. The remainder of this section of the decision, however, addressed the 
government's burden in revocation proceedings. 
Abuse-of discretion is the review standard for a federal court. Our review of motions like this filing 
involves determining whether the Petitioner has provided new facts corroborating eligibility13 and 
whether the motion was supported by pertinent precedent decisions to establish that the prior 
decision was based on an incorrect application of law or USCIS policy.14 In addition, it is the 
Petitioner's burden to document his eligibility. 15 Our responsibility when issuing an adverse 
decision is to explain in writing the specific reasons for that decision 16 and articulate a rational 
connection between the facts found and the choice made.17 We have detailed our reasoning and 
considered all evidence relating to the time of filing, and Tongatapu Woodcrafi Hawaii Ltd. does not 
support a conclusion that we have the discretion to waive the requirement to show eligibility at the time 
of filing or that we previously abused our discretion. 
B. Motion to Reopen 
In support of his motion to reopen, the Petitioner relies on new information about an event 
that attended in In addition, he presents information 
about the and its relationship with consulting associations and non-governmental 
organizations .. He also offers a letter and certificate of appreciation relating to a prior internship he 
had with the Policy Development and Studies Branch of the 
in 2007. This evidence does not establish the Beneficiary's eligibility at the 
time of filing. 
First, we have repeatedly considered the Beneficiary's role as an "Additional Representative" of the 
to the Specifically, we have noted the record lacks evidence of how this 
position fits within the overall hierarchy of the or his impact on that association. As the 
matter is now before us on an eighth motion and the Petitioner does not offer any new exhibits 
relating to his services for the at the time of filing, we will not reexamine our prior 
findings. We will address the remaining submissions below. 
13 8 C.F.R. § 103.5(a)(2) . 
14 8 C.F.R. § 103.5(a)(3). 
15 Section 291 ofthe Act, 8 U.S.C. § 1361; Matter ofOtiende, 26l&N Dec. 127, 128 (BIA 2013) . 
16 8 C.F.R. § 103.3(a)(l). 
17 
Visinscaia, 4 F. Supp. 3d at 130, (citing Americans for Safe Access v. DEA, 706 F.3d 438, 449 (D.C. Cir. 20 13)). 
4 
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Matter of H- T-
With respect to the new evidence about the we do not question that offices are 
organizations or establishments with a distinguished reputation or that the benefits from the 
organizations with which it coordinates. At issue is whether the Beneficiary performed in a leading 
or critical role for the office where he worked as an intern. 
The issued a certificate of appreciation to the Petitioner in July 2007 recognizing his 
"completion of the in the 
of the Protection of Civilians Section, 
Policy Development and Studies Branch, 
confirms the Petitioner's employment as an intern with that branch. While there, the Beneficiary 
supported a project to strengthen the role of regional organizations in protecting civilians during 
armed conflict, researched various protection concerns, and supported other research tasks as 
assigned. Upon completion of his internship, he remained as a volunteer for an additional three 
months. The Petitioner supplied a Security Council report from the Secretary-General on the 
protection of civilians during armed conflict from October 2007. The report does not credit those 
who contributed to it. 
In general, a leading role is evident from the role, its duties, and how it fits within the overall 
hierarchy of the organization. A critical role is apparent from a petitioner's impact on the entity. 
The Petitioner provided an organizational chart for various offices of the but it does 
not specify where interns fit within the hierarchy of employees. Accordingly, the Petitioner has not 
established that an intern is a leading role for the office where he worked. Further, 
explains that the. Petitioner contributed to various research projects but she does not 
suggest that the Petitioner had a significant impact on her office beyond their need for interns to 
complete assigned research. For the reasons discussed above, the Petitioner has not presented new 
facts that support his eligibility at the time of filing. 
III. CONCLUSION 
The Petitioner did not support his motion to reconsider with legal authority showing that our prior 
decisions were based on an incorrect interpretation of law or policy. The motion does not c~:mtain 
evidence of new facts that support eligibility at the time of filing. Accordingly, the motions will be 
denied. It is the Petitioner's burden to establish eligibility for the immigration benefit sought. 
Section 291 of the Act;· Otiende, 26 I&N Dec. 1 at 128. Here, that burden has not been met. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofH-T-, ID# 10491 (AAO Aug. 22, 2016) 
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