dismissed EB-1A Case: Music

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COPY 
DATE: OFFICE: TEXAS SERVICE CENTER 
MAY 03 20\\ 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Cili7enship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave .. N.W .. MS 2090 
Washington. DC 20529-2090 
U.S. 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: 
INSTRUCTIONS: 
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. § 103.5(a)(I)(i) requires that any motion must 
be filed within 30 days ofthe decision that the motion seeks to reconsider or reopen. 
Thank you, 
(J;(lJj.i ,,,·L , / '. ,--""U r ....... 
L, . efry Rhew 
\,.' Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition on April 15, 2009. The Administrative Appeals Office (AAO) dismissed the 
petitioner's appeal of that decision on January 6, 2010. The matter is now before the AAO on a 
motion to reopen and a motion to reconsider. The motions will be dismissed, the previous decision 
of the AAO will be affirmed, and the petition will remain denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § I 03.5(a)(l )(iii) requires that the 
motion must be "[a ]ccompanied 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." Furthermore, the regulation at 8 C.F.R. 
§ 103 .5(a)( 4) requires that "[a] motion that does not meet applicable requirements shall be 
dismissed. In this case, the petitioner failed to submit a statement regarding if the validity of the 
decision of the AAO has been or is subject of any judicial proceeding. As such, the motions 
must be dismissed pursuant to the regulation at 8 C.F.R. § 103.5(a)(4). 
Notwithstanding the above, in the decision of the AAO dismissing the petitioner's original 
appeal, the AAO found that the petitioner failed to establish that she meets at least three of the 
regulatory criteria pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). The AAO specifically 
and thoroughly discussed the petitioner's evidence and determined that the petitioner failed to 
establish eligibility for 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), 
the published material criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(iii), and the 
original contributions criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(v). In fact, 
the AAO found that the petitioner failed to establish eligibility for any of the criteria pursuant to 
the regulation at 8 C.F.R. § 204.5(h)(3). 
On motion, counsel listed the documentary evidence that was submitted at the time of the 
original filing of the petition and on appeal. In addition, counsel summarized her original 
arguments on appeal and the finding of the AAO for each of the criteria. On motion, counsel 
submitted the following documentary evidence: 
1. Screenshots from !:.VWW.UDJ}.~r")[g regarding Belize; 
2. Screenshots from htlp:l/lcweb2.Joc.gov regarding mass communication in 
Belize; 
3. Screenshots from www.wQrJs!-ncwspapcrs.com regarding newspapers m 
Belize; 
4. Screenshots from www.wikipcdia.com regarding newspapers in Belize; 
5. CDs entitled I Believe and Vision; 
Page 3 
6. A Certificate of Registration from the United States Copyright Office, 
dated November 16,1999, for Take Up Your Vision; 
7. Screenshots from www.hilltoprecords.com regarding background 
information about Hilltop Records; 
8. An application for registration with the United States Copyright Office. 
dated February 3, 2010, for 1 Believe; 
9. An application for registration with the United States Copyright Ottice, 
dated March 2, 20 I O. for Go,pel; 
10. A letter, dated January 7, 2010, from the petitioner requesting _ 
~ to participate at Pastors Singing for Jesus on February 6, 2010; 
II. A letter, dated November 16, 2009, from for the 
screening of the petitioner's song for the upcoming CD entitled,_ 
and 
12. An advertisement for the on November 21, 2009. 
A motion to reopen must state the new facts to be provided and be supported by attidavits or 
other documentary evidence. 8 C.F.R. § 103.5(a)(2). Based on the plain meaning of "new," a new 
fact is found to be evidence that was not available and could not have been discovered or presented 
in the previous proceeding. 1 
A review of the evidence that the petitioner submits on motion reveals no fact that could be 
considered "new" under 8 C.F.R. § 103.5(a)(2). In addition, the petitioner failed to explain why the 
evidence was previously unavailable and could not have been submitted earlier. The petitioner has 
been afforded two different opportunities to submit this evidence: at the time of the original filing of 
the petition and at the time of the filing of the appeal. A review of the evidence that the petitioner 
submits on motion reveals no fact that could be considered "new" under 8 C.F.R. § 1 03.5(a)(2) and, 
therefore, cannot be considered a proper basis for a motion to reopen. The AAO notes regarding 
items 8 -12 that they reflect events occurring after the filing of the petition on February 11,2009. 
Eligibility must be established at the time of filing. Therefore, the AAO will not consider these 
items as evidence to establish the petitioner's eligibility. 8 C.F.R. §§ 103.2(b)(I), (12); Maller of" 
Katighak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). A petition cannot be approved at a future 
date after the petitioner becomes eligible under a new set of facts. Malter of lzummi. 22 I&N 
Dec. 169, 175 (Comm·r. 1998). That decision further provides, citing Malter of" Bardouille. 18 
I The word "new" is defined as "' I. having existed or been made for only a short time ... 3. Just discovered, found, or 
learned <new evidence> .... " WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (I984)(emphasis in 
original). 
Page 4 
I&N Dec. I 14 (BIA 1981), that the cannot "consider facts that come into being only subsequent 
to the filing of a petition." Id. at 176. In fact, regarding items 8 - 10, the documentation reflects 
events occurring atter the AAO's dismissal of the petitioner's original appeal. 
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 INS v. Ahudu, 485 U.S. 94 (1988». A party seeking to 
reopen a proceeding bears a "heavy burden." 1M.') v. Ahudu, 485 U.S. at 110. With the current 
motion, the petitioner has not met that burden. The motion to reopen will be dismissed. 
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 U.S. Citizenship and Immigration (USCIS) policy. 8 C.F.R. § 103.5(a)(3). A motion to 
reconsider contests the correctness of the original decision based 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 oj'Cerna, 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 
Maller oj'Medrano, 20 I&N Dec. 216, 219 (BrA 1990, 1991). 
On motion, counsel argues that based on the population of Belize, the petitioner's documentary 
evidence was sufficient to establish eligibility. Specifically, regarding the awards criterion, 
counsel argues that "a single letter can be sufficient to establish eligibility for this criterion." 
Furthermore, counsel argues that the petitioner is eligible for the membership criterion since the 
_!III"is the only artists association in the country of 
Belize." Moreover, regarding the published material criterion, counsel argues that "[t]he fact 
that only one article was published about [the petitioner] should be analyzed in the context of the 
small size of the country. Finally, regarding the original contributions criterion, counsel argues 
that the submission of the petitioner's CDs and copyright applications are sufficient to establish 
eligibility for the criterion. 
The motion to reconsider does not allege that the issues, as raised on appeal, involved the 
application of precedent to a novel situation, or that there is new precedent or a change in law 
that affects the AAO's prior decision. As noted above, a motion to reconsider must include 
specific allegations as to how the AAO erred as a matter of fact or law in its prior decision, and it 
must be supported by pertinent legal authority. Because the respondent has failed to raise such 
allegations of error in her motion to reconsider, the AAO will dismiss the motion to reconsider. 
Page 5 
The AAO notes that even if the petitioner were to submit supporting documentary evidence 
showing that her single prize met the awards criterion, that her single membership with_ 
met the membership criterion, that her single article met the published article criterion, and that 
her CDs met the original contribution criterion, which she clearly has not, section 203(b)(I)(A)(i) 
of the Act requires the submission of extensive evidence. Consistent with that statutory 
requirement, the plain language of the regulation at 8 C.F.R. §§ 204.S(h)(3)(i), 204.S(h)(3)(ii), 
204.S(h)(3)(iii), and 204.S(h)(3)(v) requires more than one award, more than one membership, more 
than one article, and more than one original contribution. Significantly, not all of the criteria at 8 
C.F.R. § 204.S(h)(3) are worded in the plural. Specifically, the regulations at 8 C.F.R. 
§§ 204.S(h)(3)(iv) and (ix) only require service on a single Judging panel or a single high salary. 
Thus, the AAO can infer that the plural in the remaining regulatory criteria has meaning. In a 
different context, federal courts have upheld USCIS' ability to interpret significance from whether 
the singular or plural is used in a regulation.2 
The AAO further notes that the plain language of the regulation at 8 C.F.R. § 204.S(h)(3)(i) 
requires "[ d]ocumentation of the alien's receipt of lesser nationally or internationally recognized 
prizes or awards for excellence in the field of endeavor [emphasis added]," the plain language of 
the regulation at 8 C.F.R. § 204.S(h)(3)(ii) requires "[d]ocumentation of the alien's membership 
in associations in the field for which is classification is sought, which require outstanding 
achievements of their members, as judged by recognized national or international experts in 
their disciplines or fields [emphasis added]," the plain language of the regulation at 8 C.F.R. 
§ 204.S(h)(3)(iii) requires "[p]ublished material about the alien in proji!ssional or major trade 
publications or other major media, relating to the alien's work in the field for which 
classification is sought [emphasis added]," and the plain language of the regulation at 8 C.F.R. 
§ 204.S(h)(3)(v) requires "[e]vidence of the alien's original scientific, scholarly, artistic, athletic, 
or business-related contributions of major significance in the field [emphasis added]." Hence, it 
is insufficient to merely submit a third-party letter that generally claimed that the petitioner won 
a $1,000 cash prize without submitting documentary evidence demonstrating that she received 
nationally or internationally recognized prizes or awards for excellence. Similarly, it is 
insufficient to demonstrate that the petitioner is a member of ABAF without establishing that the 
petitioner is a member of associations that require outstanding achievements of their members, as 
judged by recognized national or international experts. Likewise, it is insufficient to submit to 
submit a single article without submitting documentary evidence establishing that the petitioner 
had published material about her regarding her work in professional or major trade publications 
or other major media. Finally, it is insufficient to submit evidence that she wrote songs or 
compiled a CD without submitting documentary evidence reflecting that she has made original 
contributions of major significance in the field. It is incumbent on the petitioner to satisfy every 
2 See Maramjaya v. USCIS, Civ. Act. No. 06-2158 (RCL) at 12 (D.C. Cir. March 26, 2008); 
Snapnames.com Inc. v. Chertoff, 2006 WL 3491005 at *10 (D. Or. Nov. 30, 2006) (upholding an 
interpretation that the regulatory requirement for "a" bachelor's degree or "a" foreign equivalent degree at 
8 C.F.R. § 204.5( 1)(2) requires a single degree rather than a combination of academic credentials). 
Page 6 
element of each claimed criterion. 
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 and the motion to reconsider are dismissed, the decision of the 
AAO dated January 6, 2010, is affirmed, and the petition remains denied.