dismissed EB-1A Case: Medical Research

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the 
Administrative Appeals Office 
MATTER OF H-X- DATE: JAN. 28, 2019 
MOTION ON ADMINISTRATIVE APPEALS OFFICE. DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a clinical investigator, seeks classification as an individual of extraordinary ability. 
See Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § l 153(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 revoked the approval of the petition, concluding that the 
Petitioner had not satisfied the initial evidentiary requirements set forth at 8 C.F.R. § 204.5(h)(3), 
which require documentati9n of a one-time achievement or evidence that meets at least three of the 
10 regulatory criteria at 8 C.F.R. § 204.5(h)(3)(i)-(x). We affirmed the Director's decision on 
appeal. The Petitioner then filed a motion to reopen and reconsider our previous decision, which we 
denied. 1 
The matter is now before us on the second motions to reopen and reconsider. On motion, the 
Petitioner submits additional documentation, asserting that he meets at least three criteria for this 
classification under 8 C.F.R. § 204.5(h)(3). 
Upon de novo review, we will deny both motions. 
· I. LAW 
A motion to reconsider is based on an 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. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R. 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
Section 203{b)(l)(A) of the Act makes visas available to immigrants with extraordinary ability. The 
term ."extraordinary ability"·refers only to those individuaJs in "that small percentage who have risen 
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1 Our most recent decision in this matter is Matter of H-X-,' ID# 1227778 (AAO Jun. 15, 2018). 
Matter of H-X-
to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). A petitioner can demonstrate a 
one-time acq.ievement (that is a major, internationally recognized award). Alternatively, he or she 
must provide documentation that meets at least three of the ten categories of evidence listed at 
8 C.F.R. § 204.5(h)(3)(i)-(x) (including items such as awards, memberships, and published material 
in certain media). 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 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 ofa final merits determination). 
II. ANALYSIS 
In our prior decision, we held that the Petitioner did not meet the requirements for a motion to 
reconsider and that the new evidence he submitted with the motion to reopen did ·not establish 
eligibility under the membership criterion at 8 C.F.R. § 204.5(h)(3)(ii). Here, the Petitioner submits 
this joint motion to reopen and reconsider our previous decision in which we reached those 
conclusions. 
A. Motion to Reconsider 
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). It must be supported by. a pertinent precedent or 
adopted decision, statutory or regulatory provision, or statement of U.S. Citizenship and Immigration 
Services (USCIS) or Department of Homeland Security (OHS) policy. 
The Petitioner does not cite binding precedent decisions or other legal authority establishing that we 
incorrectly applied the pertinent law or agency policy in our prior decision based on the evidence of 
record at the time. To establish eligibility, we note that the Petitioner cites regulations from the 
Food and Drug Administration, which are not dispositive in this matter: Therefore, the Petitioner 
has not established that our prior decision was based on an incorrect application of law or policy, and 
he has not met the requirements for a motion to reconsider.2 
2 The Petitioner contends that the authority of the Attorney General, now the Secretary of DHS, to revoke the approval of 
a petition, as stated in section 205 of the Act, does not extend to the Director. While this is beyond the scope of our 
review, we note that section 204 of the Act gives the Attorney General authority over petitions for aliens seeking 
classification as an alien of extraordinary ability. Section 204(a)( I )(E) of the Act, 8 U .S.C. § I I 54(a)( I )(E); see also 
. 8 C.F.R. § 2.1 (allowing the Secretary of DHS to delegate her authority) and 8 C.F.R. § 205.2 (stating that a Service 
officer authorized to approve a petition u.nder section 204 of the Act has autho'rity to revoke the approval ofa petition). · 
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Matter of H-X-
B. Motion to Reopen 
A motion to reopen must state new facts and be supported by document~ry evidence. 8 C.F.R . 
. § 103.5(a)(2). We interpret "new facts" to mean facts that are relevant to the issue(s) raised on 
motion and that have not been previously submitted in the proceeding, which includes the original 
petition. Reasserting previously stated facts or resubmitting previously provided evidence does not 
constitute "new facts." 
In our dismissal of his appeal, we held that the Petitioner.met only the scholarly articles criterion at 
8 C.F.R. § 204.5(h)(3)(vi). In his first motion, he submitted new evidence related to his membership 
in the , .and we found that this evidence failed to satisfy the regulatory 
requirements of 8 C.F.R. § 204.5(h)(3)(ii). In the instant motion, he submits several pages from the 
Standard Occupational Classification (SOC) Manual, highlighting the occupational description for 
Medical Scientists, Except Epidemiologists, under SOC code 19-1042, and he resubmits other 
material already in the record. Here, the Petitioner does not explain how the information from the 
SOC manual relates to his claim regarding the membership criterion, nor does he show how it 
establishes eligibility under 8 C.F.R. § 204.5(h)(3)(ii). Therefore, the Petitioner has not met the 
requirements for a motion· to reopen. 
III._ CONCLUSION 
The Petitioner has not demonstrated that he meets at least three of the criteria under 8 C.F.R. 
§ 204.5(h)(3)(i)-(x). The motion to reconsider is denied because the Petitioner has not established 
that our previous findings were based on an incorrect application of the law, regulations, or USCIS 
policy. Th~ motion to reopen is denied because the Petitioner has not submitted new evidence 
demonstrating that he meets the initial requirements for the classification sought. 
ORDER: The motion to reconsider is denied. 
·-· 
FURTHER ORDER: The motion to reopen is denied. 
Cite as Matter of H~X-, ID# 1925252 {AAO Jan. 28, 2019) 
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