dismissed EB-1A Case: Law

U.S. Citizenship 
and Immigration 
Services 
MATTEROFH-T-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: MAY 15,2018 
MOTION ON ADMINSTRATIVE 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 Inunigration 
and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This first preference 
classification makes inunigrant 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, concluding that the record did not 
establish, as required, that the Petitioner 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 under 8 C.F.R. § 204.5(h)(3)(i)-(x). We 
upheld that decision on appeal and reaffirmed our findings in ten subsequent motion decisions. 
On combined motions to reopen and reconsider, the Petitioner again asserts that he meets the 
membership criterion at 8 C.F.R. § 204.5(h)(3)(ii) and the leading or critical role criterion at 8 
C.F.R. § 204.5(h)(3)(viii). 
Upon review, we will deny both motions. 
I. LAW 
A motion to reconsider is based on ail incorrect application of law or policy, and a motion to reopen 
is based on documentary evidence of new facts. The requirements of a motion to reconsider are 
located at 8 C.F.R. § I 03.5(a)(3) and the requirements of a motion to reopen are located at 8 C.F.R. § 
l03.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility for 
the requested immigration benefit. 
To be eligible for this classification, a petitiOner must show that he or she is a person of 
extraordinary ability. 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 demonstrate 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 that 
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Matter of H-T-
petitioner does not submit this evidence, then he or she must provide sufficient qualifying 
documentation that meets at least three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i)- (x) 
(including items s uch as award s: published material in certain media, and scholarly articles). Where 
a petitioner submits qualifying evidence under at least three criteria , we will determine whether the 
totality of the record shows sustained national or international acdaim and demon strates that the 
individual is among the small percentage at the very top of the field of endeavor. See Kazarian v. 
USC IS, 596 F .3d 1115 (9th Cir. 201 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); Rij"al 
v. USCIS , 772 F. Supp. 2d 1339 (W.O. Wash . 2011), aff'd, 683 F.3d. 1030 (9th Cir. 2012). 
ll. ANAL YSJS 
In our previous decisions denying the Petitioner's motions, we determined that he did not meet the 
initial evidence requirements under 8 C.F.R . § 204.5(h)(3). The Petitioner established that he has 
served as a judge of the work of others in his field under 8 C.F.R. § 204.5(h)(3)(iv) , but did not 
submit evidence which established that met two additional criteria. On motion , he repeats his 
assertion that, as a fellow of the American Bar Foundation , he satisfie s the member ship criterion at 8 
C.F.R. § 204.5(h)(3)(ii), and that his work during a 2007 internship with an office of the United 
Nations meets the leading or critical role criterion at 8 C.F.R. § 204.5(h)(3)(viii). 1 In addition, the 
Petitioner once again asserts that Rule 42(a) of the Federal Rules of Civil Procedure should be 
applied to allow us to consider evidence that postdates his filing of the petition. 
A. Motion to Reconsider 
A motion to reconsiaer 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. § 1 03.5(a)(3). A motion to reconsider must be supported by a 
pertinent precedent or adopted decision, statutory or regulatory provi sion, or statement of U.S. 
Citizenship and Immigration Services (USC IS) or Department of Homeland Security policy. 
Regarding the membership in associations criterion at 8 C.F.R. § 204.5(h)(3)(ii), we explained in our 
most recent decision that since the Petitioner did not become a fellow of the 
until 2016, six years after the filing of his· petition for the requested classification, this 
event cannot be considered in evaluating his eligibility. The regulation at 8 C.F.R. § 103.2(b)(l) is 
clear that a petitioner must establish eligibility for the requested immigration benefit at the time of 
filing. On motion , the Petitioner points out that he was admitted to practice law in in 
2008 , but has _not established that his admission to the bar would meet the requirements of 
this criterion. 
1 The Petitioner also claims that he meets the requirements of8 C.F.R. § 204.5(h)(3) (v) based on the number of times his 
dissertation has been downloaded . However, our review on motion is limited to the issues contained in our most recent 
decision. 
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The Petitioner also reasserts his claim to have played a leading or critical role for organi zations with 
a · distinguished reputation under 8 C.F.R. § 204.5(h)(3)(vii). He challenges our previous 
characterization of his role as a volunteer by noting that his grounds pass issued by the United 
Nations Headquarters identifies him as a "Consultant." He also refers to a previously submitted 
document which describes his duties for the 
That document, however, lists his position title as "Volunteer." Regardless of the 
Petitioner's title with during the ten-month period he was there, he has not cited to case law, 
statute, regulation, or policy to establish that our previous decision regarding his role was incorrect. 
The Petitioner further restates his assertion that the rule at Fed. R. Civ. P. 42(a) should be applied to 
consolidate his second petition requesting the same immigrant visa classification with this petition. 
He cites 
to the Administrative Procedure Act (APA) at 5 U.S.C. § 702, which provides: 
A person suffering legal wrong because of agency action , or adversely affected or 
aggrieved by agency action within the meaning of a relevant statute, is entitled to 
judicial review thereof. An action in a court of the United States seeking relief other 
than money damages and stating a claim that an agency or an officer or· employee 
thereof acted or failed to act in an official capacity or under color of legal authority 
shall not be dismissed nor relief therein be denied on the ground that it is against the 
United States or that the United States is an indispensable party . The United States 
may be named as a defendant in any such action, and a judgment or decree may be 
entered against the United States: Provided, That any mandatory or injunctive decree 
shall specify the Federal officer or officers (by name or by title), and their succes sors 
in oftice, personally responsible for compliance. Nothing herein (1) affects other 
limitations on judicial review or the power or duty of the court to dismiss any action 
or deny relief on any other appropriate legal or equitable ground; or (2) confers 
authority to grant relief if any other statute that grants consent to suit expressly or 
impliedly forbids the relief which is sought. 
While the Petitioner is correct that, under the APA, our decision s are subject to review in United 
States district courts, he provides no citation to support his assertion that "the instant administrative 
proceedings should be considered being present under the color of the Federal Rule s of Civil 
Procedure." As stated in our most recent decision, the AAO is not a court, and thus the Federal 
Rules of Civil Procedure do not apply to proceedings before us. Rather, we are bound by our own 
agency's regulation at 8 C.F. R. § l 03 .2(b )(1 ), which provides that a petitioner "must establish that 
he or she is eligible for the requested benefit at the time of filing the benefit request and must 
continue to be eligible through adjudication." 
The Petitioner also asserts that the rule at 8 C.F.R. § 103.2(b)(l) does not address the situation 
present in his case, where two petitions for the same classification are pending simultaneously, and 
that this "merits a discretionary departure from the general rule." However, each immigrant petition 
is a separate record of proceeding with a distinct burden of proof, and each petition must stand on its 
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own merits. See generally § 291 of the Act. Accordingly, we may not consider evidence that 
postdates the filing of this petition, including the Petitioner's status as an fellow. 
B. Motion to Reopen 
In support of his motion to reopen, the Petition.er has submitted new evidence, which is reviewed 
below under the applicable evidentiary criteria. As stated above and in our previous decisions, the 
Petitioner must first establi sh eligibility at the time of filing. 8 C.F.R. § l03.2(b)(l). We may then 
consider additional evidence that postdates the filing of this petition. However, even if we were to 
consider such proof, the Petitioner would still have not established that he meets .the requisite three 
of ten eviqentiary criteria. 
Documentation of the alien's membership in assoc iations in the field for which 
classification is sought , which require outstanding achievements of their members: as 
judged by recognized national or internati onal experts in their disciplines or .fields. 8 
C.F.R. § 204.5(h)(3)(ii). 
The Petitioner has previously submitted evidence of his membership as a fellow of the 
an election that occurred six years after the filing of this petition. He now 
submits the bylaws of the . which indicate at Section 3.01 that fellows are elected by the Board 
of Directo rs, and at Section 4.01 ("General Qualifications") that fellows "must be recognized as a 
person of outstanding achievement and high character in the jurisdiction or nation in which such 
Fellow practices." The Petitioner has also submitted a list of members of the 
which indicates that some of these Board members were or are officers of the 
The evidence submitted relates to events occurring more than six years after the 
filing of the petition and therefore cannot be considered for establishing eligibility. See 8 C.F.R. § 
103.2(b)(l); see also Maller of Katigbak, 14 I&N Dec. 45, 49 (Reg'] Comm'r 1971) ("Congress did 
not intend that a petition that was properly denied because the beneficiary was not at that time 
qualified be subsequentl y approved at a future date when the beneficiary may become elig ible under 
a new set of facts.") 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 8 C.F.R. § 204.5(h)(3)(viii). 
The Petitioner has previously asserte d that his role as an "Additional Representative " of the 
to the at Vienna satisfies this criter ion, 
and now submits new evidence on motion. This evidence indicates that the organize d and 
hosted a side event at the 
in Vienna on May 2017, and that the Petitioner was one of three members who were issued 
security badges for this session. A webpage of the alumni associati on of the 
states that the Petitioner was responsible for hosting and organizing the side event. 
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Under 8 C.F.R. § 1 03.2(a)(l )(i) a motion must be filed within 30 days of the decision it seeks to 
reopen. We last considered the Petitioner's role with in our decision dated August 22, 
2016. In his tenth and most recent motion, the Petitioner did not raise it, nor did our decision 
address the issue. Therefore , the Petitioner's role with is not an issue properly before us 
and we need not consider the evidence submitted . 
Ill. CONCLUSION 
The Petitioner has not establish ed that our previous decision was based upon an incorrect application 
of law or policy , or that it was erroneous based upon the evidence in the record of proceedings . In 
addition, he has not submitted new evidence which supports his eligibility for the requested 
classi tication at the time of filing. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofH-T-, 10# 1161068 (AAO May 15, 2018) 
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