dismissed EB-1A Case: Martial Arts

identifying data deleted to 
prevent clearly unwarranwd 
invasion of personal privacy 
PUBLlCCOPY 
DATE: 
JUL 23 2012 
IN RE: Petitioner: 
Beneficiary: 
u.s. Department of Homeland !o,t'CUrll)' 
\ J .S. ('i[inll~hip and Imnllgr:nilJJ1 Sl'I"\'il'C:­
Admilliqr(llj\(: Ap[w:ils Otfi,'L' (!\!\()) 
'20 r-.bssachuc,l'[l" Ave. "i.\V .. M" ~()()() 
Wasllill~l(Jn. DC 20:'i2()·.2()!)O 
u.s. Citizenship 
and Immigration 
Services 
Office: TEXAS SERVICE CENTER FILE: 
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(h)(1)(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 maller have been returned to the office that originally decided your case. Please 
he advised that any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in rcaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to rcopen 
in accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can he found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you" .,' 
V" 
'''''' I 
. ''';~''~ '. -
c"' ·:t /~. ~. 
Perry Rhew' 
Chief. Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, 
Texas Service Center. The petitioner filed a motion to reopen and reconsider, which the director 
dismissed. The Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter 
is now before the AAO on motion to reopen and reconsider. The motion will be dismissed 
pursuant to 8 C.F.R. §§ 103.5(a)(I)(iii)(C), 103.5(a)(2), 103.5(a)(3), and 103.5(a)(4). 
The petitioner seeks classification as an employment-based immigrant pursuant to section 
203(b)(I)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1153(b)(I)(A), as an 
alien of extraordinary ability as a martial arts instructor. Congress set a very high benchmark for 
aliens of extraordinary ability by requiring through the statute that the petitioner demonstrate the 
alien's "sustained national or international acclaim" and present "extensive documentation"' of the 
alien's achievements. See section 203(b)(1)(A)(i) of the Act and 8 C.F.R. § 204.5(h)(3). The 
implementing regulation at 8 C.F.R, § 204,5(h)(3) states that an alien can establish sustained 
national or international acclaim through evidence of a one-time achievement of a major, 
internationally recognized award. Absent the receipt of such an award, the regulation outlines ten 
categories of specific objective evidence, 8 c.F.R. § 204.5(h)(3)(i) through (x), The petitioner must 
submit qualifying evidence under at least three of the ten regulatory categories of evidence to 
establish the basic eligibility requirements, 
At the time of filing the petition on July 27, 2007, the petitioner claimed eligibility f(n 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), and the leading or critical role criterion 
pursuant to the regulation at S C.F.R, § 204,5(h)(3)(viii), On January 2, 200S, the director issued 
a request for additional evidence pursuant to the regulation at 8 C.F,R. § 103.2(b )(8). In 
response, the petitioner submitted additional documentation regarding the awards criterion, the 
membership criterion, and the leading or critical role criterion. 
In the director's February 27, 2008 decision denying the petition, he discussed the petitioner's 
documentary evidence as it related to the regulatory criteria at 8 C.F.R. §§ 204.5(h)(3)(i), (ii), 
and (viii) and found that the petitioner failed to establish eligibility for any of the preceding 
criteria. On March 28, 2008, the petitioner filed a motion to reopen and reconsider pursuant to 
the regulation at 8 C.F.R. § 103.5(a) and again claimed the petitioner's eligibility for the awards 
criterion, the membership criterion, and the leading or critical role criterion. In addition, the 
petitioner claimed for the first time his eligibility for the high salary criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(ix). In the director's December 17, 2009 decision 
dismissing the petitioner's motion, the director addressed the petitioner's documentary evidence 
as it related to each of the four claimed criteria and found that the petitioner failed to overcome 
any of the grounds originally stated in his decision and that the petitioner failed to establish 
eligibility for the high salary criterion. 
On appeal, rather than challenging any of the director's specific Endings or pointing to specific 
errors in the director's analyses of the documentary evidence submitted lor the categories of 
evidence at 8 C.F.R. § 204.5(h)(3), counsel summarized the documentation previously submitted 
as well as the petitioner's achievements for the awards criterion, the membership criterion, and 
the leading or critical role criterion. Counsel also cited to a federal district court case and several 
Page 3 
unpublished decisions of the AAO. In contrast to the broad precedential authority of the case 
law of a United States circuit court, the AAO is not bound to follow the published decision of a 
United States district court in matters even arising within the same district. See Malter of K·S·, 
20 I&N Dec. 7 IS (BIA 1993). Regarding the unpublished decisions of the AAO, counsel failed 
to provide evidence to establish that the facts of the instant petition were analogous to those in 
the unpublished decisions. Further, while 8 C.F.R. § 103.3(c) provides that AAO precedent 
decisions are binding on all U.S. Citizenship and Immigration (USCIS) employees in the 
administration of the Act, unpublished decisions are not similarly binding. 
The regulation at 8 C.F.R. § 103.3(a)(1)(v) provides that "[a)n otlicer to whom an appeal is 
taken shall summarily dismiss any appeal when the party concerned fails to identify specifically 
any erroneous conclusion of law or statement of fact for the appeal." In its May 6, 2011 
decision, the AAO stated that counsel's general references to case law and unpublished decisions 
were not sufficient basis for a substantive appeal, because they did not show how the director 
erred in his latest decision. The AAO found that the petitioner's appellate submission failed to 
identify as a proper basis for the appeal an erroneous conclusion of law or a statement of fact in 
the director's December 17, 2009 decision. Accordingly, the AAO summarily dismissed the 
petitioner's appeal. 
[The petitioner) is arguably the foremost leader in the field of martial arts. His abilities 
are unequaled as is proved by his competition dominance. He has won titles in many 
different categories of competition with a variety of different rules. His abilities are 
unique and put him head and shoulders above all other competitors. He has dominated 
the tournament circuit for many years both nationally and internationally. 
Mr._comments on the petitioner's abilities as a martial arts competitor, but the opinions 
expressed by Mr._ fail to demonstrate that the petitioner satisfies any of the regulatory 
criteria at 8 C.F.R. § 204.S(h)(3) based on his achievements as a martial arts inSITllctur. The 
statute and regulations require that the petitioner seeks to continue work in his area of expertise 
in the United States. See section 203(b)(1)(A)(ii) of the Act, 8 U.S.c. § 1153(b)(I)(A)(ii); 
8 C.F.R. § 204.5(h)(S). On the Form 1-140, Immigrant Petition for Alien Worker, in Part 6, 
"Basic Information About the Proposed Employment," the petitioner lists his job title as _ 
The petitioner also submitted letters indicating that he has worked in the U.S. 
as a martial arts coach and trainer. Subsequent to his arrival in the United States in 2004, there is 
no documentary evidence showing that the petitioner has continued to successfully compete in 
national or international taekwondo competitions. The record is clear that the petitioner intends 
I For clarification, the United States Tae Kwon-Do Won is a separate entity from USA Taekwondo, the official 
national governing body for the sport of taekwondo in the United States as recognized hy the U.S. Olympic 
Committee. See hllpJ!www2.tt.:amusa.mg/lJ>-A. __ ~T'lt;J.;y:{ond\l/Ahoul-Us.a spx, accessed on June 29, 2012, copy 
ilH.::orporated into the record of proceeding. 
Page 4 
to continue to work in the area of martial arts coaching and instruction in the United States. In 
addition to documentation establishing the petitioner's intention to continue to work in the 
United States as a martial arts instructor and coach, the petitioner's initial evidence included 
documentation of his _ as a taekwondo competitor from the While a 
taekwondo competitor and an instructor may share knowledge of the sport, the two rely on very 
different sets of basic skills. Thus, competitive athletics and martial arts instruction and 
coaching are not the same areas of expertise. This interpretation has been upheld in Federal 
Court. In Lee v.I.N.S., 237 F. Supp. 2d 914 (N.D. Ill. 2(02), the court stated: 
It is reasonable to interpret continuing to work in one's "area of extraordinary ability" as 
working in the same profession in which one has extraordinary ability, not necessarily in 
any profession in that field. For example, Lee's extraordinary ability as a baseball player 
does not imply that he also has extraordinary ability in all positions or professions in the 
baseball industry such as a manager, umpire or coach. 
Id. at 918. The court noted a consistent history in this area. While the record demonstrates that 
the petitioner intends to continue working as a martial arts coach and instructor, there is no 
evidence showing that he intends to compete in taekwondo tournaments in the United States. 
Regarding Mr. _ comments as they relate to the petitioner's eligibility for the regulatory 
criterion at 8 C.F.R. § 204.5(h)(3)(i), the "field of endeavor" for which classification is sought is 
martial arts instruction and coaching. Awards resulting from the petitioner's victories as a 
competitor in taekwondo tournaments cannot be considered evidence of his national or international 
recognition as martial arts instructor or coac~the titles won by the petitioner in 
various taekwondo competitions from the __ do not satisfy the plain language 
requirements of the regulation at 8 C.F.R. § 204.5(h)(3)(i) for purposes of establishing the 
petitioner's extraordinary ability as an instructor or coach. Regarding the March 8, 2010 letter 
from Mr. I USCIS may, in its discretion, use as advisory opinions statements submitted 
as expert testimony. See Matter ofCaronlntematiolla/, 19 I&N Dec. 791, 795 (Comm·r. 1988). 
However, USCIS is ultimately responsible for making the final determination regarding an 
alien's eligibility for the benefit sought. Id. The submission of reference letters supporting the 
petition is not presumptive evidence of eligibility; USCIS may evaluate the content of those 
letters as to whether they support the alien' s eligibility. See id. at 795-796; see also Matter of v­
K-, 24 I&N Dec. 500, n.2 (BIA 2(08) (noting that expert opinion testimony does not purport to 
be evidence as to "fact"). Thus, the content of the references' statements and how they became 
aware of the petitioner's reputation are important considerations. Even when written by 
independent experts, letters solicited by an alien in support of an immigration petition arc of less 
weight than preexisting, independent evidence that one would expect of a martial arts instructor 
who has sustained national or international acclaim at the very top of his field. 
With regard to the petitioner's eligibility for the regulatory criterion at 8 C.F.R. § 204.5(h)(3)(ix), 
the petitioner's motion includes copies of numerous checks made payable to the petitioner dated 
2010 and 2011. These payments to the petitioner post-date the petition's July 27, 2007 filing 
date. Eligibility must be established at the time of filing. Therefore, the AAO will not consider 
these payments as evidence to establish the petitioner's eligibility. 8 C.F.R. §§ 103.2(b)(I), (12); 
Matter ofKatigbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). A petition cannot be approved at 
Page 5 
a future date after the petitioner becomes eligible under a new set of facts. Matter oflz/{mmi. 22 
I&N Dec. 169. 175 (Comm'r 1998). That decision further provides. citing Matter of Bardo/{ille, 
18 I&N Dec. 114 (BIA 1981), that USCIS cannot "consider facts that come into being only 
subsequent to the tiling of a petition." Id. at 176. The filing of a motion to reopen does not 
permit the petitioner to become eligible based on remuneration received after the filing of the 
original petition. 
According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts to be provided and 
be supported by affidavits or other documentary evidence. According to 8 C.F.R. § 103.5(a)(3), 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. 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. INS v. Doherty, 502 U.S. 314, 323 (I 992)(citing INS v. Ablldll, 485 U.S. 94 (1988)). A 
party seeking to reopen a proceeding bears a "heavy burden." INS v. Ablldll, 485 U.S. at llO. A 
motion to reconsider contests the correctness of the original decision hased on the previous 
factual record, as opposed to a motion to reopen which seeks a new hearing based on new or 
previously unavailable evidence. See Matter ofCema, 20 I&N Dec. 399, 403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised 
earlier in the proceedings. Rather, the "additional legal arguments" that may be raised in a 
motion to reconsider should flow from new law or a de novo legal determination reached in its 
decision that may not have been addressed by the party. Further, a motion to reconsider is not a 
process by which a party may submit, in essence, the same brief presented on appeal and seek 
reconsideration by generally alleging error in the prior decision. Instead, the moving party must 
specify the factual and legal issues raised on appeal that were decided in error or overlooked in 
the initial decision or must show how a change in law materially affects the prior decision. See 
Matter of Medrano, 20 I&N Dec. 216, 219 (BIA 1990,1991). 
In this case, the documentation submitted on motion fails to demonstrate that the petltIOner 
satisfies any of the categories of evidence at 8 C.F.R. § 204.5(h)(3). Further, the AAO notes that 
the petitioner failed to address the deficiencies in the record pertaining to the regulatory criteria 
at 8 C.F.R. §§ 204.5(h)(3)(ii) and (viii). The AAO, therefore, considers these issues to be 
abandoned. See Sepulveda v. u.s. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir. 20(5); Hris/uv 
v. Ruark, No. 09-CY-27312011, 20ll WL 4711885 at *1, *9 (E.D.N.Y. Sept. 30, 2(11) (the 
court found the plaintitrs claims to be abandoned as he failed to raise them on appeal to the 
AAO). In addition, counsel failed to support the instant motion with any precedent decisions to 
establish that the AAO's May 6, 20ll decision was based on an incorrect application of law or 
USCIS policy. The petitioner's motion does not include legal arguments or precedent decisions 
indicating that the AAO's decision summarily dismissing his appeal was incorrect based on the 
evidence of record. Moreover, the instant motion does not contain the statement about whether 
or not the validity of the unfavorable decision has been or is the subject of any judicial proceeding 
as required by the regulation at 8 C.F.R. § 103.5(a)(I)(iii)(C). For this additional reason, the 
motion must be dismissed. 
Page 6 
The regulation at 8 C.F.R. § 103.5(a)(4) states that "[a] motion that does not meet applicable 
requirements shall be dismissed:· Accordingly, the motion will be dismissed, the proceedings will 
not be reopened and reconsidered, and the previous decisions of the director and the AAO will not 
be disturbed. 
ORDER: The motion to reopen and reconsider is dismissed, the decision of the AAO dated 
May 6, 2011 is affirmed, and the petition remains denied.