dismissed EB-1A Case: Martial Arts

U.S. Citizenship 
and Immigration 
Services 
In Re: 23378972 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: OCT. 31, 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a martial arts instructor, seeks classification as an individual of extraordinary ability. 
This first preference classificationmakesimmigrantvisas 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 Nebraska Service Center denied the petition, concluding that the Petitioner had 
not: (1) satisfied the initial evidentiary criteria set forth in 8 C.F.R . § 204.5(h)(3), which requires 
documentation of a one-time achievement or evidence that the Petitioner meets at least three of the ten 
regulatory criteria; or (2) established that he would work in his area of expertise. We determined that 
the Director was correct overall in concluding that the petition did not warrant approval, andwe 
therefore dismissed the Petitioner's appeal and four subsequent motions. The matter is now before us 
on a fifth motion, this time a combined motion to reopen and reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit by a 
preponderance of the evidence. See section 291 of the Act, 8 U.S.C. § 1361; Matter of Chawathe, 
25 I&N Dec. 369,375 (AAO 2010). 1 Upon review, we will dismiss the motion. 
I. LAW 
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 recognition 
of his or her achievements in the field 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 meets at least three of the ten criteria listed at 8 C.F.R. 
§ 204 .5(h)(3)(i) - (x) (including items such as awards, published material in certain media, and 
scholarly articles). 
1 If a petitioner submits relevant, probative, and credible evidence that leads us to believe that the claim is "more likely 
than not" or"probably"true, it has satisfied the preponderance of the evidence standard. Chawathe, 25 I&N Dec. at 375-
76. 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determina tion and assess whether the record shows susta ined 
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. USCIS, 596 F.3d 111 5 (9th Cir. 2010) . 
( discussing a two -part review where the documentation is first counted and then, if fulfilling the 
required numbe r o f criteria, considered in the context of a final merits dete1mination); see also 
Visinscaia v. Beers, 4 F . Supp . 3d 126, 13 1-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash . 2011 ). 
The regulation at 8 C.F.R. § 103 .5(a)(l )(i) limits U.S. Citizenship and Immigration Services ' authority 
to reconsider to instances where an applicant has shown "proper cause" for that action . Thus , to merit 
reconsideration, a petitioner must not only meet the formal filing requirements at 8 C.F.R. 
§ 103 .5(a)(l )(iii) (such as submission of a properly completed and signed Form I-290B , Notice of 
Appeal or Motion , with the correct fee) , but also show proper cause for granting the 
motion . Specifically, a motion to reopen is based on factual grounds and must: ( 1) state the new facts 
to be provided in the reopened proceeding; and (2) be supported by affidavits or other documentary 
evidence . 8 C.F.R. § 103 .5(a)(2). 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) . In these proceedings, 
it is the petitioner's burden to establish by a preponderance of the evidence eligibility for the requested 
benefit. Matter ofCha wathe, 25 I&N Dec. 369, 375 (AAO 2010) . 
II. ANALYSIS 
In our most recent decision , the dismissal of the Petitioner's fourth motion, we determined that the 
Petitioner made the same assertions and submitted a brief whose content was nearly identical to the 
one provided in support of the prior third motion. As such, we concluded that the Petitioner offered 
no cogent argument to demonstrate that we incorrectly applied the law or USCIS policy in our prior 
decision where we dismissed the Petitioner's third motion because he did notmeetthe awards criterion 
at 8 C.F.R. § 204.5(h)(3)(i) and the membership criterion at 8 C.F.R. § 204.5(h)(3)(ii) . Therefore , a 
final merits determination was not necessary since the Petitioner did not meet three of the initial ten 
required criteria. See Matte r of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006) (finding that a motion to 
reconsider is not a proces s by which the party may submit in essence , the same brief and seek 
reconsideration by generally alleging error in the prior decision) . We also determined that the 
Petitioner did not establish that we erred in reserving a determination on his intent to continue to work 
in his area of expertise under section 203(b )(l)(A)(ii) of the Act and 8 C.F.R. § 204.5(h)(5). 
As noted in our prior decision , the review of any motion is narrowly limited to the basis for the prior 
adverse decision . Accordingly , we will examine only new facts or arguments that pertain to our 
dismissal of the Petitioner 's fourth motion, which was a motion to reconsider. Thus , the issue before 
us is whether the Petitioner can establish that we incorrectly applied law or policy in dismissing the 
prior motion to reconsider. 
In support of the current motion , the Petitioner submits a brief addressing the merits of his claimed 
eligibility for the extraordinary ability visa classification , thereby seeking adjudication of the original 
claims and evidence. However , the purpo se of a motion is to address new facts or evidence in the case 
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of a motion to reopen and/or to address error in how the law or users policy was applied in the 
decision that immediately preceded the motion in a motion to reconsider. In this instance, our prior 
decision addressed the merits of a motion to reconsider the Petitioner's third motion. We concluded 
that the Petitioner did not establish that we incorrectly applied the law or users policy in our prior 
decision dismissing his third motion. Merely disagreeing with our conclusions without showing how 
we erred as a matter of law or pointing to policy that contradicts our analysis of the evidence is not a 
ground to reconsider our decision. 2 
Here, in the decision that immediately preceded this motion, we declined to re-adjudicate the merits 
of the Petitioner's eligibility claims, explaining that those claims, and evidence submitted in support 
thereof, had been previously addressed in a comprehensive appeal decision that thoroughly analyzed 
and explained why the indicated evidence and claimed arguments did not meet the regulatmy 
requirements. Although the Petitioner disagrees with our prior detennination regarding the merits of 
his eligibility, he offers no new facts nor establishes that our prior decision dismissing the motion to 
reconsider was incorrect as a matter oflaw or policy. Accordingly, the Petitioner did not demonstrate 
that his current motion meets the requirements for a motion to reopen under 8 e.F.R. § 103.5(a)(2) or 
the requirements of a motion to reconsider under 8 e.F.R. § 103.5(a)(3). Therefore, we will dismiss 
the motion to reopen and reconsider. 
ORDER: The motion to reopen and reconsider is dismissed. 
2 "Motions for reopening immigration proceedings are disfavored for the same reasons as are petitions for rehearing and 
motions fora newtrialon the basis ofnewly discovered evidence." INS v. Doherty, 502 U.S. 314,323 (1992)(citingJNS 
v. Abudu, 485 U.S. 94 (1988)). 
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