dismissed EB-1A Case: Music

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
identifying data deleted to 
 U. S. Citizenship 
prevent zltizr.iy 11-~wat-ranted 
 and Immigration 
invasiorr of persomi privacy 
PUBLIC COPY 89 
NOV 1 9 2009 
LIN 07 064 50797 
PETITION: 
 Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act; 8 U.S.C. $ 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
$ 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
fj 103.5(a)(l)(i). 
i ' , Perry Rhew 
( (Chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied this employment-based 
immigrant visa petition on March 27, 2008. The Administrative Appeals Office (AAO) 
dismissed the petitioner's appeal of that decision on March 31, 2009. 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. 
On motion, counsel claimed that the documentation was previously unavailable and submitted 
the following documentation: 
1. A letter regarding the International Music Festival MESAM from Radio Television 
~erbia,- 
2. A letter regarding MESAM from - 
3. A certificate regarding MESAM from the Association of Serbia, Jazz, Pop, and Rock 
Musicians; 
4. A letter regarding MESAM from the Association of Independent Syndicate of Artists and 
Show Business Performers in 
5. A letter regarding MESAM fro 
6. A letter regarding the Moravs 
7. Several articles that were previously submitted but now retranslated in their entirety; 
8. A letter regarding SABOR magazine from'- 
9. A letter regarding the judging at the Moravski Biseri Festival by the petitioner from 
- 
10. Articles from Extra Magazine and Pan Zabavnik; and 
1 1. A list of songs by the petitioner. 
A motion to reopen must state the new facts to be provided and be supported by affidavits or 
other documentary evidence. 8 C.F.R. 5 103.5(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.' 
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). All evidence submitted was previously available 
and could have been discovered or presented in the previous proceeding. The petitioner's motion is 
not an opportunity for counsel to correct her own defects in the record such as insufficient 
translations. It is hrther noted that the petitioner has submitted evidence with this motion that was 
originally requested by the director in a request for additional evidence dated December 19, 2007. 
Matter of Soriano 19 I&N Dec. 764 (BIA 1988), held that a petitioner may be put on notice of 
evidentiary requirements by regulations, written notice such as a request for additional 
documentation or a notice of intent to deny, or an oral request at an interview. As the petitioner was 
I 
 The word "new" is defined as "1. having existed or been made for only a short time . . . 3. Just discovered, found, or 
learned <new evidence> . . . ." WEBSTER'S I1 NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (1984)(emphasis in 
original). 
- 
Page 3 
previously put on notice and provided with a reasonable opportunity to provide the required 
evidence, the evidence submitted on motion will not be considered "new" and will not be 
considered a proper basis for a motion to reopen. 
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. Abudu, 485 U.S. 94 (1988)). A party seeking to 
reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the current 
motion, the petitioner has not met that burden. The motion to reopen will be dismissed. 
In the motion to reconsider, counsel reiterates the same arguments made in the original appeal. 
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. fj 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 of 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 
Matter of Medrano, 20 I&N Dec. 216,219 (BIA 1990, 1991). 
In this case, counsel failed to support her motion with any precedent decisions to establish that 
the decision was based on an incorrect application of law or USCIS policy. The motion to 
reconsider will be dismissed. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. 5 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 March 3 1,2009, is affirmed, and the petition remains denied.