dismissed EB-1A Case: Law

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-T-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAR. 24,2017 
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 Center denied the petition. The Director determined that the 
Petitioner had not satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which 
require documentation of a one-time achievement or evidence that meets at least three of the ten 
regulatory criteria set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). We upheld that 
decision on appeal and reaffirmed our findings in eight subsequent motion decisions. 
The matter is now before us on a ninth motion, a joint motion to reopen and reconsider. In his 
current motion, the Petitioner offers new evidence and maintains that he performed a leading or 
critical role for a qualifying organization, and that the federal rules of civil procedure and the AAO's 
de novo review authority mandate consideration of his post-tiling accomplishments. 
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.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 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 reop~n must 1state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). The regulation at 8 C.F.R. § 103.5(a)(2) does not define what constitutes a "new" 
fact, nor does it mirror the Board of Immigration Appeals ' definition of "new" at 8 C.F.R. 
§ 1003.23(b)(3) (stating that a motion to reopen will not be granted unless the evidence "was not 
available and could not have been disco vered or presented at the former hearing "). Unlike the Board 
regulation, we do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable. Instead , we interpret "new facts" to mean facts that are relevant to the issue(s) 
raised on motion and that have not been previously submitted in the proceeding, which includes the 
original petition. Reasserting previously stated facts or resubmitting previously provided evidence 
does not constitute "new facts." 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at 
the time of the decision. 8 C.F.R. § 103.5(a)(3) . A motion to reconsider must be supported by a 
pertinent precedent or adopted decision , statutory or regulatory provision , or statement of U.S. 
Citizenship and Immigration Services (USCJS) or Department of Homeland Security policy. 
II. ANALYSIS 
As an attorney , the Petitioner specializes in international law. We have previousl y concluded that he 
has served as the judge of others. Therefore , he meets one criterion .2 The regulation at 8 C.F.R 
§ 204.5(h)(3 ), however , requires that the Petitioner satisfy at least three of the ten regulatory criteria. 
In our prior decisions , we have explained why the Petitioner has not satisfied at least two of the 
remaining criteria. 
On motion, the Petitioner presents additional evidence in support of his eligibility under the leading 
or critical role criterion at 8 C.F .R. § 204.5(h)(3 )(viii). In support of his contention, he points to a 
prior internship he had with the of the 
in 2007. He states that at the conclusion of his 10-
month internship, the "did promote and retain " him, on an "exceptional basis , in 
recognition and acknowledgment of the petitioner ' s achievement , contribution , and crucial role." He 
also describes how the " cleaned " (sic) him for a "P-2 level profe ssional officer position , 
1 
See Kazarian v. USCIS, 596 F.3d . lll5 (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. USCIS, 772 F. Supp. 2d 1339 (W.O. 
Wash. 20 II) ; Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 201 0) (holding that the "truth is to be determined not by 
the quantity of evidenc e 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 totalit y of the evidence , to determine 
whether the fact to be proven is probably true"). 
2 8 C.F.R. § 204.5(h)(3)(iv) . 
2 
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Matter of H~ T-
responsible (focal point person) for the policy Issue of the humanitarian consequence of global 
climate change." 
As we discussed in our earlier decisions, the issued a certificate of appreciation to 
the Petitioner in July 2007 recognizing his "completion of the 2007 
in the 
of the 
for the aftirms that the Petitioner was 
employed 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. 3 explains 
that the Petitioner contributed to various research projects but does not suggest that the Petitioner 
had a significant impact on her office beyond their need for interns to complete assigned research. 
With this motion, the Petitioner maintains that he performed in a critical role for an organization 
with a distinguished reputation when he was "retained" on an "exceptional basis" by the 
following the completion of his internship. He provides the contact information for a member of the 
Executive Office of the whom he states can confirm his appointment to the position 
of "professional officer." He maintains that his "critical role" is well demonstrated by this "highly 
unusual and exceptional promotion and retention." 
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 as a "professional 
officer" as he claims. 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 asserts that in his "professional officer" role, he was responsible for the 
policy issue concerning the humanitarian consequences of global climate change.4 He did not 
submit evidence, beyond his own affidavit, that he ever entered on duty in this position. 
Furthermore, he has not provided documentation explaining how this role would be considered a 
leading or critical role within the or how his position fit within the overall hierarchy 
of the organization. 
3 
The Petitioner submitted copies of press releases dated and 2007, concerning the 
protection of civilians in armed conflict, along with a rep~rt of the on the protection of civilians in 
armed conflict dated 2015. While the Petitioner claims that he was "solely responsible for drafting" this 
summary report, there is no evidence supporting his contention. It is not clear who authored these releases or how they 
support the Petitioner's contention that he served in a critical role with the 
4 
The Petitioner has previously described this role as "an additional representative beyond a three-year term." As we 
discussed in our previous decisions, an extension of his term may speak to the quality of his work; however, he provides 
no support for his assertion that he is only one ?f two that have ever been allowed to serve beyond a term limit, and that 
such an exception is demonstrative of his leading or critical role for this organization. 
.
~ 
Matter of H-T-
Finally, the Petitioner contends that his role as a staff member of the qualifies as 
comparable evidence · sufficient to meet the regulatory criterion at 8 
C.P.R. § 204.5(h)(3)(ii) and 
8 C.P.R. § 204.5(h)(4). 5 He submits a copy of the staff rules and staff regulations of the 
dated January 2014. He does not provide evidence verifying his position on the 
staff or explain how a staff position would be properly considered a leading or critical role . 
Going on record without supporting documentar y evidence is not sufficient for purposes of meeting 
the burden of proof in these proceedings. Matter o(Soffici , 22 I&N Dec. 158, 165 (Assoc . Comm ' r 
1998) (citing Matter ofTrea sure Craft of Cal~fornia , 14 I&N Dec. 190 (Reg 'l Comm'r 1972)). As 
such, the Petitioner has not established that he meets the plain language requirements of the 
regulatory criterion at 8 C.P.R. § 204.5(h)(3)(ii), or that he has submitted qualifying comparable 
evidence for this criterion. 
A. Motion to Reconsider 
In support of his motion to reconsider, the Petitioner contends that Federal Rule of Civil Procedure 
42(a) and the AAO Practice Manual require the AAO to "look at the record anew" and not defer to 
findings made in the initial decision. The Petitioner asserts that because he has filed a new petition 
and could file an even newer one, we have the discretion to waive the requirement to show eligibility at 
the time of filing. The Petitioner bases his legal argument on consolidation under the Federal Rule of 
Civil Procedure.6 The rule permits a federal court, in its discretion, to join all actions before the court 
that have a common question oflaw or fact, in order to avoid unnecessary cost or delay. This rule does 
not guide our analysis, however, because each petition must be evaluated on its own merits, despite 
potentially common questions of law or fact. Furthermore, the Petitioner has not provided authority for 
his contention that the Federal Rules of Civil Procedure govern our proceedings or permit us to 
disregard the regulation at 8 C.P.R. § 103.2(b)(l) , which states: "An applicant or petitioner must 
establish that he or she is eligible for the requested benefit at the time oftiling the benefit request." 
Regarding our de novo review, we have previously stated that, even though we conduct de novo review, 
an unapprovable petition cannot be cured by post-submission changes. Matter oflzummi, 22 I&N Dec. 
169, 175 (Assoc. Comm. 1998). Eligibility must be established at the time of filing. 8 C.P.R. 
§ 103.2(b)(l), (12); Matt er of Katigbak, 14 I&N Dec. at 49. Accordingly, the Petitioner has not 
shown that we erred as a matter of law by not considering his achievements after the date of tiling. 
Rather, both regulations and precedent decisions support our legal conclusions. 
Finally, the Petitioner again refers to Tongatapu Woodcraft Hawaii Ltd. v. Feldman , 736 F.2d 1035, 
1308 (9th Cir.) for the proposition that our prior decisions were in error. Our review of motions like 
this filing involves determining whether the Petitioner has provided new facts corroborating 
eligibility 7 and whether the motion was supported by pertinent precedent decisions to establish that 
5 
The regulation at 8 C.F.R. § 204.5(k)(3)(iii) allows for the submission of "comparable evidence " if the standards "do 
not readily apply to the beneficiary's occupation ." 
6 Fed. R. Civ. P. 42(a) 
7 
8 C.F.R. § 103.5(a)(2) . 
4 
Matter of H-T-
the prior decision was based on an incorrect application of law or USCIS policy.8 In addition, it is 
the Petitioner's burden to document his eligibility.9 Our responsibility when issuing an adverse 
decision is to explain in writing the specific reasons for that decision 10 and articulate a rational 
connection between the facts found and the choice made. 11 We have detailed our reasoning and 
considered all evidence relating to the time of filing. Tongatapu Woodcraft 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 erred in denying the motions. 
III. CONCLUSION 
In this matter, the Petitioner has not demonstrated that he meets at least three of the ten regulatory 
criteria at 8 C.F.R. § 204.5(h)(3). As the evidence provided in support of the motion to reopen does 
not overcome the grounds underlying our previous decision, and the motion to reconsider is not 
supported by any pertinent precedent decisions or legal citations that demonstrate our latest decision 
was based on an incorrect application of law or users policy, the motions are denied. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter of H-T-, ID# 169189 (AAO Mar. 24, 2017) 
8 8 C.F.R. § 103.5(a)(3). 
9 
Section 291 of the Act, 8 U .S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 20 13 ). 
10 
8 C.F.R. § I 03.3(a)( I). 
11 
Visinscaia, 4 F. Supp. 3d at 130, (citing Americans for Safe Access v. DEA, 706 F.3d 438,449 (D.C. Cir. 2013)). 
5