dismissed EB-1A Case: Music

identifyinr r10ta deleted to 
prevent CkCXI) ~.'warranted 
invasion of personal privacy 
PUBUCCOpy 
DATE: JAN 11 2012 Office: NEBRASKA SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave" N.W., MS 2090 
Washington. DC 20529-2090 
US. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)( I )(A) of the Immigration and Nationality Act, 8 U.S.c. § I I 53(b)( I )(A) 
ON BEHALF OF PETITIONER: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The 
specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, 
with a fee of $630. Please be aware that 8 C.F.R. § I03.5(a)(I)(i) requires that any motion must be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
c?~ 2Sr--
-(J/ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition on April IS, 2008. On appeal, the Administrative Appeals Office (AAO) withdrew the 
director's decision, and because the petition was not approvable, remanded the petition to the 
director for further consideration on April 29, 2009. The director subsequently certified his denial to 
the AAO on November 9, 2009. The AAO affirmed the director's adverse decision on the petition 
on April 19,2010. The matter is now before the AAO on a motion to reopen. The motion will be 
dismissed. The previous decision of the AAO will be affirmed, and the petition will remain denied. 
8 C.F.R. § 103.S(a)(l) informs the public of the filing requirements for a motion and provides in 
pertinent part: 
A motion shall be submitted on Form 1-2908 and may be accompanied by a brief. It must be: 
(A) In writing and signed by the affected party or the attorney or representative of record, if 
any; 
(8) Accompanied by a nonrefundable fee as set forth in § 103.7; 
(C) Accompanied by a statement about whether or not the validity of the unfavorable 
decision has been or is the subject of any judicial proceeding and, if so, the court, nature, 
date, and status or result of the proceeding; 
(D) Addressed to the official having jurisdiction; and 
(E) Submitted to the office maintaining the record upon which the unfavorable decision was 
made for forwarding to the official having jurisdiction. 
(Emphasis added.) 
In this case, the petitioner failed to submit a statement indicating if the validity of the AAO's 
unfavorable decision has been or is subject of any judicial proceeding. Furthermore, the regulation 
at 8 C.F.R. § 103.S(a)(4) requires that "[a] motion that does not meet applicable requirements shall 
be dismissed. As such, the motion must be dismissed pursuant to the regulation at 8 C.F .R. 
§ 103.S(a)(4) without regard to the claims contained within the motion. 
Notwithstanding this fundamental defect of the petitioner's failure to meet a regulatory requirement 
for the tiling of motions, the AAO will review the merits of the present motion. The AAO's April 
19, 2010 decision affirming the director's adverse decision on appeal concluded that the petitioner 
failed to establish he meets at least three of the regulatory criteria pursuant to the regulation at 8 
C.F.R. § 204.S(h)(3). The AAO specifically and thoroughly discussed the criteria implicated by the 
evidence the petitioner submitted on certification: the lesser awards criterion pursuant to the 
regulation at 8 C.F.R. § 204.S(h)(3)(i); the published material criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(iii); and the leading or critical role criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(viii). 
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, (1992) (citing INSv. Abudu, 485 U.S. at 108 (1988)). 'There is a strong 
public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the 
adversaries a fair opportunity to develop and present their respective cases." INS v. Ahudu, 485 at 107. 
Based on its discretion, "[T]he INS [USCIS] has some latitude in deciding when to reopen a case. 
[USCIS] should have the right to be restrictive. Granting such motions too freely will permit endless 
delay of deportation by aliens creative and fertile enough to continuously produce new and material 
facts sufficient to establish a prima facie case." Id. at 108. The result also needlessly wastes the time 
and efforts of the triers of fact who must attend to the filing requests. Id. A party seeking to reopen a 
proceeding bears a "heavy burden." Id. at 110. With the current motion, the petitioner has not met that 
burden. 
It is important to note that the petitioner, through counsel, failed to specifically identify the criteria 
under the regulation at 8 C.F.R. § 204.5(h)(3) in which he wished USCIS to consider each form of 
evidence. If it is the petitioner's contention that he meets a particular criterion, it remains his 
responsibility to specifically identify under which criterion USCIS should consider the evidence. He 
failed to provided such a statement or argument in this regard during the initial filing, in response to 
the July 22, 2009 request for evidence (RFE), in counsel's appellate brief dated December 9, 2009, 
and to a degree within the brief related to the present motion to reopen. The burden is on the 
petitioner to establish eligibility. It is not the USCIS's responsibility to infer or second-guess the 
intended criteria. 
Regarding the awards criterion, counsel argues that the previously submitted evidence establishes 
the petitioner's sustained acclaim through receipt of "major national/international recognized 
awards. One time receipt is all that is required." In its April 19, 2010 decision, the AAO determined 
that although the petitioner provided website printouts indicating he received various awards, he 
failed to provide sufficient evidence indicating the standards for the awards relating to whether the 
awards are issued for excellence in the tield rather than simply for participating in or contributing to 
the event. The AAO also determined that the petitioner failed to demonstrate that these awards 
enjoy national or international recognition. Additionally, the AAO determined that the petitioner 
failed to meet an additional plain language requirement of this criterion due to his failure to provide 
he received the best male vocal performance award 
as he merely provided evidence that he was nominated for this 
Accompanying this motion, the petitioner presents one additional form of evidence; a letter from the 
Nepalese embassy asserting the petitioner is the recipient of five awards. The petitioner failed to 
submit any documentary evidence to corroborate the assertions contained within this letter. 
Additionally, the petitioner failed to demonstrate how this evidence was previously unavailable and 
could not have been submitted earlier. The petitioner has been afforded at least four different 
opportunities to submit this evidence: at the time of the original filing of the petition on July 19, 
2007, in response to the director's request for additional evidence pursuant to the regulation at 8 
C.F.R. § 103.2(b)(8) on January 7,2008, within his initial appeal on May 14,2008, and at the time 
of the second RFE upon the AAO remanding the case back to the director on July 22, 2009. A 
review of the evidence that counsel submits on motion relating to this criterion reveals no fact that 
could be considered "new" under 8 C.F.R. § 103.5(a)(2) and, therefore, cannot be considered a 
proper basis for a motion to reopen. As a result, this evidence will not be considered. 
Regarding the published material criterion, counsel states, "We are resubmitting some original 
language articles with the translations adjusted to show the citation information as required under the 
applicable regulation." In the AAO's April 19, 2010 decision, the AAO noted that the petitioner 
failed to provide translations for two articles that complied with the regulatory requirements for 
translated documents. Specifically, the submitted material did not contain the translator's 
certification that he or she is competent to translate from the foreign language into English. See 8 
C.F.R. § 103.2(b)(3). Additionally, the petitioner failed to submit the title, date, and author of the 
material, which fails to comply with the plain language of the regulation at 8 C.F .R. 
§ 204.5(h)(3)(iii). A motion to reopen is a procedural step designed to afford the petitioner an 
opportunity to submit new evidence that may not have been available previously; not to allow the 
petitioner to improve upon his previously deficient evidence that failed to meet the clearly identified 
regulatory requirements. The petitioner failed to demonstrate that this evidence was not available 
and could not have been discovered or presented in the previous proceeding, and therefore cannot be 
considered a proper basis for a motion to reopen. As a result, this evidence will not be considered. 
Furthermore, the director's July 22, 2009 RFE put the petitioner on notice of this same deficiency. 
The purpose of the request for evidence is to elicit further information that clarifies whether the 
petitioner has established the beneficiary's eligibility for the benefit sought as of the filing date of 
the petition. See 8 C.F.R. §§ 103.2(b)(8) and (12). The petitioner's failure to submit requested 
evidence that precludes a material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 
§ t03.2(b)(l4). As in the present matter, where the director put the petitioner on notice of a 
deficiency in the evidence and gave the petitioner an opportunity to respond to that deficiency, the 
AAO will not accept evidence offered for the first time on appeal. See Maller of Soriano. 19 I&N 
Dec. 764 (BIA 1988); Matter of Obaigbena, 19 I&N Dec. 533 (BtA 1988). If the petitioner had 
wanted the director to consider the submitted evidence, it should have submitted the documents in 
response to the director's request for evidence. Id. This provides an additional reason that the AAO 
need not, and does not, consider the sufficiency of the evidence submitted in the present motion to 
reopen. 
In reference to the judging criterion, counsel's brief accompanying this motion states: "Evidence was 
submitted earlier in case [sic] and is being resubmitted to highlight this area of qualification." The 
director discussed the evidence submitted for this criterion and found that the petitioner failed to 
establish his eligibility. On certification, the petitioner did not contest the director's findings for this 
criterion or offer additional evidence. The AAO, therefore, considers this issue to be 
abandoned. Sepulveda v. u.s. At(y Gen.. 401 F.3d 1226, 1228 n. 2 (11th Cir. 2005); Hristov v. 
Roark, No. 09-CV-273 1201 I, 2011 WL 4711885 at *1, 9 (E.D.N.Y. Sept. 30, 2011) (the court 
Page 5 
found the plaintiffs claims to be abandoned as he failed to raise them on appeal to the 
AAO). Accordingly, the petitioner has not established that he meets this criterion. Of additional 
importance, this admittedly resubmitted evidence cannot be considered "new" under 8 C.F .R. 
§ I 03.5(a)(2) and, therefore, cannot be considered a proper basis for a motion to reopen. 
Regarding the leading or critical role criterion, in its April 19, 2010 decision, the AAO determined 
that the petitioner failed to document his position within the charity event relating to his role being in 
a leading capacity, and that he failed to document how his role within the charity event differentiated 
him from others who also took part in the event relating to his role being critical. Additionally, the 
AAO concluded that the submitted documentation failed to establish that the petitioner was 
responsible for the success of the relief event consistent with the meaning of performing in a leading 
or critical role for an organization or . the the 
same community support group, a 
dated January 18,2008. Both the UNDP website and the 
relating materials fail to identify the petitioner. This new evidence relates to UNDP's reputation 
rather than the petitioner's role in which he performed for UNDP. It is this role that the petitioner 
performed for UNDP, as a whole, that the AAO originally questioned, and which he still fails to 
demonstrate. New evidence submitted with a motion to reopen should be both material to the 
present case and should convey new value or new meaning to the case. The petitioner has failed to 
demonstrate how the UNDP related documents contribute to his eligibility under this criterion. As 
such, the petitioner may not rely upon these documents to establish his performance in a leading or 
critical role for the charity event. Additionally, the petitioner had previously submitted the letter 
from the Community Support Group 2059, Pokhara. Accordingly, this evidence cannot be 
considered "new" under 8 C.F.R. § 103.5(a)(2). This evidence cannot be considered a proper basis 
for a motion to reopen. 
In reference to the commercial success criterion, counsel's motion brief states: "Evidence provided 
earlier in case [sic] from the companies that own/hold his recording . Additional 
anecdotal evidence is supplied through the letters of appreciation from the concerts 
where [the petitioner] performed." The anecdotal evidence counsel refers to are additional 
appreciation letters relating to the petitioner perfonning at the charity event. The director discussed 
the evidence submitted for this criterion and found that the petitioner failed to establish his 
eligibility. On certification, the petitioner did not contest the director's findings for this criterion or 
offer additional arguments. The AAO, therefore, considers this issue to be abandoned. Sepulveda 
401 F.3d at 1228 n.2; Hristov, 2011 WL 4711885, at *9. Accordingly, the petitioner has not 
established that he meets this criterion. However, even if the AAO were to consider the "anecdotal 
evidence," the petitioner has failed to demonstrate that additional appreciation letters related to the 
charity event were not available and could not have been discovered or presented in the previous 
proceeding. This evidence would continue to fall short of being considered "new" under 8 C.F .R. 
§ 103.5(a)(2). As such, this evidence cannot be considered a proper basis for a motion to reopen. 
Pursuant to 8 C.F.R. § 103.5(a)(l). a motion must be accompanied by a statement indicating if the 
validity of the AAO's unfavorable decision has been or is the subject of any judicial proceeding. As the 
petitioner failed to submit such a statement accompanying his motion to reopen, the regulations at 8 
C.F.R. § 103.5(a)(4) require that the motion be dismissed. Moreover, according to 8 C.F.R. 
§ I 03.5(a)(2), a motion to reopen must state the new facts to be provided and be supported by affidavits 
or other documentary evidence. The petitioner has not filed a proper motion to reopen. His request was 
not accompanied by any evidence that can be considered new evidence under 8 C.F.R. § 103.5(a)(2) 
that was not available and could not have been discovered or presented in the previous proceeding. A 
request for motion must meet the regulatory requirements of a motion to reopen. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U .S.c. § 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion to reopen is dismissed. The decision of the AAO dated April 19,2010, is 
affirmed, and the petition remains denied.