dismissed EB-1A Case: Law

U.S. Citizenship 
and Immigration 
Services 
MATTER OF H-T-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: OCT. 17,2017 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, 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. He determined that the Petitioner did 
not satisfy 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 nine subsequent motion decisions. 
The matter is again before us on combined motions to reopen and reconsider. The Petitioner 
maintains that he meets the membership criterion under 8 C.F.R. § 204.5(h)(3)(ii) and the leading or 
critical role criterion under 8 C.F.R. § 204.5(h)(3)(viii). He further states that he has demonstrated 
his eligibility for the classification. 
Upon review, we will deny both motions. 
I. LAW 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are 
located at 8 C.F.R. § I 03.5(a)(2), and the requirements of a motion to reconsider are located at 
8 C.F.R. § 103.5(a)(3). 
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). A 
petitioner can meet his or her initial evidence requirements through a one-time achievement (that is a 
major, internationally recognized award). If that petitioner does not submit this evidence, then he or 
she must provide sufficient qualifying documentation that satisfies at least three of the ten criteria 
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Matter of H-T-
under 8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards, published material in certain 
media, and scholarly articles). Where a petitioner submits qualifying initial evidence, we will then 
determine whether the totality of the record shows sustained national or international acclaim and 
demonstrates that the individual is among the small percentage at the very top of the field of 
endeavor. See Kazarian v. USCJS, 596 F.3d 1115, 1121-22 (9th Cir. 2010) (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. USCJS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011).
1 
II. ANALYSIS 
In our previous decision 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). Specifically, while he satisfied the 
participation as a judge criterion under 8 C.F.R. § 204.5(h)(3)(iv), he did not present documentation 
verifying that he met two additional criteria? In the instant motions, he maintains that his status as a 
fellow of the meets the membership criterion under 8 C.F.R. 
§ 204.5(h)(3)(ii) and that his work during a 2007 internship at an office satisfies the 
leading or critical role criterion under 8 C.F .R. § 204.5(h)(3 )(viii). In addition, he argues that under 
Rule 42(a) of the Federal Rules of Civil Procedure, we should consider evidence that postdates his 
filing of the petition to evaluate his eligibility. We will discuss these issues below. 
A. Regulatory Criteria 
Documentation of the alien's membership in associations in the field for which class(fication is 
sought, which require outstanding achievements of their members. as judged by recognized 
national or international experts in their disciplines or fields. 8 C.F.R. § 204.5(h)(3)(ii). 
A petitioner must establish that all eligibility requirements for the immigration benefit have been 
satisfied from the time of the tiling and continuing through adjudication. 8 C.F.R. § 1 03.2(b )(1 ). 
The Petitioner submits a certificate, indicating that in July 2016, six years after he filed the instant 
petition, the selected him to be a fellow, "in recognition of exemplary dedication to the 
profession, commitment to the work of the and support for the ideals and objectives of the 
He, however, has not explained how his receipt of the certificate years 
after he filed the petition illustrates his eligibility for the classification at the time he filed the 
petition. 
1 See also Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding that the truth "is to be determined not by the 
quantity of evidence alone but by its quality" and that U.S. Citizenship and Immigration Services (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 In addition, as discussed in our 2013 decision dismissing the Petitioner's appeal, the record does not establish his 
receipt of"a one-time achievement (that is, a major, international recognized award)." See 8 C.F.R. § 204.5(h)(3). 
2 
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Matter of H-T-
Regardless, the record lacks sufficient evidence on the selection process of fellows. One of the 
documents the Petitioner offers on motion states that Board of Directors selects fellows 
"because of the outstanding achievements and high character they have demonstrated in their legal 
careers." The same document indicates that fellows are those "who have demonstrated outstanding 
leadership in the profession and service to society." website provides that fellows are those 
who "have demonstrated outstanding dedication to welfare of their communities and to the highest 
principles of the legal profession." The Petitioner has not presented evidence establishing that 
"require[ s] outstanding achievements of [its] members." Moreover, while he has submitted a list of 
Board of Directors, he has not included evidence verifying that the individuals who select 
fellows are "recognized national or international experts in their disciplines or fields.'' See 8 C.F.R. 
§ 204.5(h)(3)(ii). In short, he has not shown that he may rely on a 2016 accomplishment to 
demonstrate his eligibility. In the alternative, his status as an fellow does not satisfy this 
criterion. 
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). 
On motion, the Petitioner references a letter from 
internship at the 
who supervised him during his 
of the 
because he was "one of the very few 
from January to October 2007. He maintains that 
official interns that had ever been 
allowed to serve beyond a six-month term limit," he has 
organization. "3 The record does not support his statement. 
established his "critical role for the 
According to during the Petitioner's nine-month internship with "his main 
functions were to support the on a variety of [the 
organization's] principal projects." lists a number of his research projects, including 
some that "drew on his personal expertise in law and his knowledge of Chinese and far eastern 
cultures." She notes that "he completed his tasks efficiently requiring little supervision" and that 
"after fully completing the permissible term for internships he extended his tenure by working as a 
volunteer for a further three months." In an email from the internship program 
coordinator, which the Petitioner offers on motion, in March 2007, the organization had 170 interns. 
As discussed in our previous decisions, while the Petitioner has illustrated his successful completion 
of his internship, he has not demonstrated that he performed a critical role for the or 
Specifically, as stated in our most recent decision, ' explains that the 
Petitioner contributed to various research projects but does not suggest that [he] had a significant 
impact on her office beyond [its] need for interns to complete assigned research." In addition, we 
discussed in our last decision that "an extension of his term may speak to the quality of his work," 
but it is insufficient to confirm his critical role for the organization. 
3 The Petitioner has not alleged or established that he performed a leading role for the 
components. 
3 
or any of its 
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Matter of H- T-
Moreover, although he has presented documents showing that the maximum internship term is six 
months, he has not provided evidence substantiating the significance of his status as a volunteer for 
an additional three-month period. In short, notwithstanding his six-month service as an intern and a 
three-month term as a volunteer, the Petitioner has not demonstrated he performed a critical role for 
either the or any of its components. He does not satisfy this criterion. 
B. Federal Rules of Civil Procedure 
The Petitioner has not cited to any 
legal authority demonstrating that the Federal Rules of Civil 
Procedure is applicable in this case. As explained in the United States Courts website, the Federal 
Rules of Civil Procedure "govern civil proceedings in the United States district courts." 4 The 
Petitioner has not pointed to any legal support showing that these rules apply to administrative 
proceedings, such as this one. 
A review of the language of Rule 42(a), which the Petitioner has urged us to consider, further 
illustrates that it is inapplicable in this case. Specifically, Rule 42(a)5 provides: 
Consolidation. If actions before the court involve a common question of law or fact, 
the court may: 
(1) join for hearing or trial any or all matters at issue in the actions; 
(2) consolidate the actions; or 
(3) issue any other orders to avoid unnecessary cost or delay. 
While the rule discusses what a court may do in cases that share a common question of law or fact, it 
does not mandate consolidation. In this case, the Petitioner has not demonstrated that we are a 
"court," or that even if we were a "court," which we are not, we must consider evidence that 
postdates his filing of the petition to evaluate his eligibility. 
On the contrary, regulation at 8 C.F.R. § 103.2(b)(l), which is binding on us,6 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." As such, we may not 
4 http://www. uscourts.gov /rules-pol icies/current-rules-practice-procedure/federal-rules-ci vi !-procedure, accessed on 
October I 0, 2017, and incorporated into the record of proceedings. 
5 http://www.uscourts.gov/sites/default/files/rules-of-civil-procedure.pdf, accessed on October I 0, 2017, and relevant 
pages incorporated into the record of proceedings. 
6 See, e.g., Panhandle Eastern Pipe Line Co. v. Federal Energy Regulatory Commission, 613 F.2d 1120, 1135 (D.C. Cir., 
1979) (holding an agency is bound by its own regulations); Reuters Ltd. v. Federal Communications Commission, 781 
F.2d 946, 950 (D.C. Cir., 1986) (holding an agency must adhere to its own rules and regulations; ad hoc departures from 
those rules, even to achieve laudable aims, cannot be sanctioned). 
4 
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Matter of H- T-
consider evidence that postdates the Petitioner's filing of the petition, such as his status as an 
fellow, in this matter. 
Ill. CONCLUSION 
The evidence the Petitioner submits in support of his motions does not overcome the grounds 
underlying our previous decision or demonstrate his eligibility for the classification. 7 In addition, he 
has not established that our previous decision was based on an incorrect application of law or policy, 
or that the decision was erroneous based on the evidence in the record of proceedings at the time of 
the decision. 
ORDER: The motion to reopen is denied. 
FURTHER ORDER: The motion to reconsider is denied. 
Cite as Matter ofH-T-, ID# 595192 (AAO Oct. 17, 2017) 
7 The Petitioner has not submitted the required initial evidence. As a result, we need not provide the type of final merits 
determination referenced in Kazarian, 596 F.3d at 1119-20.