dismissed EB-1A Case: Mechanical Engineering

U.S. Citizenship 
and Immigration 
Services 
In Re: 13020667 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : FEB. 2, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a mechanical engineering specialist , seeks classification as an alien 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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner had received a major, international recognized award or satisfied at least 
three of ten alternative evidentiary criteria, as required. After a series of appeals and motions ( detailed 
below), the matter is now before us on a combined motion to reopen and reconsider. 
In these proceedings , it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the combined motion. 
I. MOTION REQUIREMENTS 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2) . A motion to reconsider must 
state the reasons for reconsideration and establish that the decision was incorrect based on the evidence 
of record at the time of the initial decision . 8 C.F.R. § 103.5(a)(3) . A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F.R . § 103.5(a)(4). 
Under the above regulations, 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. We may grant a motion 
that satisfies these requirements and demonstrates eligibility for the requested immigration benefit. 
The regulation at 8 C.F.R. § 103.S(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reopening or 
reconsideration, a petitioner must not only meet the formal filing requirements (such as submission of 
a properly completed Form 1-290B, Notice of Appeal or Motion, with the correct fee), but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See 8 C.F.R. § 103.5(a)(4). 
By regulation, the scope of a motion is limited to "the prior decision." 8 C.F.R. § 103.5(a)(l)(i). 
Therefore, the filing before us is not a motion to reopen and reconsider the denial of the petition or the 
initial dismissal of the appeal. Instead, the filing is a motion to reopen and reconsider our most recent 
decision. Therefore, we cannot consider new objections to the earlier denial, and the Petitioner cannot 
use the present filing to make new allegations of error at prior stages of the proceeding. 
II. LAW 
Section 203(b)(l)(A) of the Act makes immigrant visas available to aliens with extraordinary ability if: 
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international 
acclaim and whose achievements have been recognized in the field through 
extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
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 must either establish a 
one-time achievement (that is, a major, internationally recognized award) or 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). 
Where a petitioner meets these initial evidence requirements, we then consider the totality of the 
material provided in a final merits determination and assess whether 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. USCIS, 596 F.3d 1115 (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. USCIS, 772 F. Supp. 2d 1339 
(W.D. Wash. 2011). 
III. ANALYSIS 
A. Procedural History 
In order to provide context, we discuss, here, the procedural history of this matter. 
2 
July 2017 The Petitioner filed the petition. 
August 2018 The Director denied the petition, concluding that the Petitioner had not established 
eligibility for the classification sought. 
September 2018 The Petitioner appealed the Director's decision to us at the Administrative Appeals 
Office (AAO), and stated that he would submit a brief and additional evidence within 
30 days. The record does not show, and the Petitioner does not claim, that he 
submitted those materials within that period. 
December 2018 We summarily dismissed the appeal, citing the regulation at 8 C.F.R. § 103.3(a)(l)(v), 
which requires summary dismissal of an appeal that does not identify specifically any 
erroneous conclusion of law or statement of fact in the decision being appealed. 
January 2019 The Petitioner filed a combined motion to reopen and reconsider. On motion, the 
Petitioner did not contest the summary dismissal of the appeal. Rather, the Petitioner 
addressed the grounds for denial of the underlying petition. 
June 2019 We denied the Petitioner's motion as untimely, because we received it after the 
expiration of the filing period defined at 8 C.F.R. § 103.3(a)(2)(v)(B)(I). 
July 2019 The Petitioner appealed the denial of the motion, seeking to explain the delay in filing. 
October 2019 We rejected the appeal, because the regulations make no provision for a petitioner to 
appeal a decision by the Administrative Appeals Office. 
November 2019 The Petitioner filed a combined motion to reopen and reconsider, seeking both to 
explain the untimely filing of the January 2019 motion and to submit new evidence in 
support of the underlying petition. 
July 2020 We granted the Petitioner's motion to reopen in part and dismissed it in part, and 
dismissed the motion to reconsider. We excused the delay in filing the January 2019 
motion, under the regulation at 8 C.F.R. § 103.5(a)(l)(i), but we also determined that 
the Petitioner had not overcome the summary dismissal of his September 2018 appeal. 
B. Motion to Reopen 
The Petitioner's latest motion includes several documents, but all of them are copies of materials that 
he had submitted previously. None of them are new to the record, and therefore they do not introduce 
new facts. Furthermore, most of the submitted documents relate to events in 2018 and 2019, after the 
petition's July 2017 filing date. As such, they cannot establish eligibility at the time of filing, as 
3 
required by the regulation at 8 C.F.R. § 103.2(b)(2). See also Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971) (new facts cannot retroactively establish eligibility). 1 
We will dismiss the motion to reopen, because the Petitioner has not shown cause for reopening the 
proceeding. 
C. Motion to Reconsider 
For the motion to qualify as a motion to reconsider, the Petitioner must show that our most recent prior 
decision (issued July 2020, relating to the Petitioner's November 2019 motion) contained errors of 
fact, law, or policy that affected the outcome of that decision. 2 In that decision, we made the following 
determinations: 
• We granted the motion to reopen in part, because the Petitioner had adequately explained the 
delay in filing the January 2019 motion; 
• The only issue properly under consideration in the January 2019 motion was the summary 
dismissal, not the August 2018 denial or the merits of the underlying petition; 
• The Petitioner did not show that we erred in summarily dismissing the original appeal; and 
• The regulations make no provision to excuse the late filing of a motion to reconsider. 
In the present motion, proper consideration is limited to these issues. 
The Petitioner states, on motion: 
AAO erred by summarily dismissing the appeal and failed to consider petitioner's brief 
with newly submitted evidence. The AAO should not have summarily dismissed his 
appeal and overlooked the additional evidence previously submitted attached to 
beneficiary's motion. 
Petitioner identified an error in the director's decision summarily dismissing 
petitioner's appeal without considering the evidence attached to the motion and new 
statement of facts and new evidence in support of his motion. 
Petitioner asserts that AAO erred in summarily dismissing the appeal since the 
petitioner provided numerous explanations in the form of motion and supplemental 
brief: affidavit and newly submitted evidences and basis for his appeal and additional 
evidence when the appeal was filed. 
1 To avoid conveying the false impression that these materials would have otherwise established eligibility, we briefly note 
that the submitted materials relate to the Petitioner's employment at an elder care facility and a student project involving 
the construction of an impact attenuator for a race car. On its face, this evidence does not establish or suggest that the 
Petitioner is eligible for classification as an alien of extraordinary ability. 
2 See 8 C.F.R. § 103.S(a)(l)(i). 
4 
The above statement alleges error in the December 2018 summary dismissal, but only by ignoring the 
chronology and conflating the appeal (filed in September 2018) with a subsequent motion (filed in 
January 2019), repeatedly referring to the motion as though it were an integral part of the appeal. 
When we reviewed the appeal in December 2018, the Petitioner had not yet filed the motion, and had 
not yet submitted any brief or evidence in support of that motion. The motion was the Petitioner's 
response to the December 2018 summary dismissal. The appeal that was before us in December 2018 
did not specifically identify any erroneous conclusion of law or statement of fact. 
In a new brief: the Petitioner cites various examples of case law concerning the limited scope of 
motions to reconsider. For example, he cites Matter o_f Medrano, 20 I&N Dec. 216,219 (BIA 1990, 
1991 ), which he paraphrases as follows: "A motion to reconsider should not be used to raise a legal 
argument that could have been raised earlier in the proceedings." This case law undermines, rather 
than supports, his argument on motion. The time to allege specific errors in the Director's denial 
decision was in the appeal filed in September 2018. At that time, the Petitioner filed only a skeletal 
appeal. He stated that more details would follow within 30 days, but he did not supplement the appeal 
during that time. The filing of the appeal afforded the Petitioner a time-limited opportunity to raise 
specific objections to the denial. It did not create or preserve any right for the Petitioner to dispute the 
denial in a motion that would be filed months later. 
The Petitioner filed a timely appeal in September 2018, but he did not, at that time, identify any 
specific grounds for the appeal. Instead, he made the general statement that the denial contained 
unspecified errors which the Petitioner would address in a brief, to follow within 30 days. The record 
does not contain any timely supplemental brief from the Petitioner, and the Petitioner does not claim 
to have submitted one. The Petitioner's January 2019 motion could not, and did not, cure the 
deficiencies in his September 2018 appeal. 
Because the Petitioner has not overcome the summary dismissal of his appeal, we will not address the 
merits of the petition in great detail. Nevertheless, in an effort to inform the Petitioner that the above­
described technical and procedural issues are not the only obstacles to approval of the petition, we will 
discuss certain elements of the record. 
The regulation at 8 C.F.R. § 204.5(h)(3) requires "evidence that the alien has sustained national or 
international acclaim and that his or her achievements have been recognized in the field of expertise." 
The same regulation provides that such evidence may take the form of "a one-time achievement (that 
is, a major international[ly] recognized award)." In the initial denial notice, the Director observed that 
the relevant legislative history named the Nobel Prize as an example of such an award. See H.R. Rep. 
101-723, 59 (Sept. 19, 1990), reprinted in 1990 U.S.C.C.A.N. 6710, 1990 WL 200418 at *6739. The 
Director also noted that the awarding of the Nobel Prize routinely attracts international attention. 
The Petitioner claims to have received such an award, in the form of a "Certificate of Recognition" 
"[?or being an outstanding individual" at the .__ ____________ ___.2016" event held 
by ~- I The Petitioner also claims to have "received ... international recognition for his 
contribution as Tech Specialist from~------~' We agree with the Director's conclusion 
that these accolades do not rise to the level of major, internationally recognized prizes or awards, on a 
par with the Nobel Prize. 
5 
One of the lesser regulatory criteria, at 8 C.F.R. § 204.5(h)(3)(vi), calls for evidence of the alien's 
authorship of scholarly articles in the field, in professional or major trade publications or other major 
media. The Petitioner states that he satisfies this criterion through customer reviews posted online on the 
website of a company that repairs ventilation and electrical systems. These reviews do not conform to 
any of the elements required by the regulation. The Petitioner is not the author of the reviews; the reviews 
are not scholarly articles; and the website is not a professional or major trade publication or other major 
media. The Director correctly determined that these customer reviews do not establish the Petitioner's 
authorship of scholarly articles. 
The Petitioner seeks permanent immigration benefits in a classification that, by law, is reserved for 
individuals who have earned sustained national or international acclaim at the top of their fields. The 
caliber of evidence submitted to support the petition does not rise close to this highly rarefied level of 
achievement and recognition. 
IV. CONCLUSION 
The latest motion does not establish that our most recent decision was in error, and seeks to reach back 
to earlier stages of the proceeding that are no longer ripe for review on motion. The Petitioner has not 
overcome our determination that summary dismissal was the proper, and required, outcome when 
presented with an appeal that contained no specific allegations of error in fact or law. 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
G