dismissed EB-1A Case: Neuroscience

I1.S. 1)epartmcnt of Homeland Security 
11,s. ('itizcnsliip and Immigration Services 
()//;L.c, o/':l(/~~liili~/r~i/i~~c~ . I/)/~cI~s MS 2090 
U asl~i~ipton. [>C' 20520-2090 
U.S. Citizenship 
and Immigration 
FILE: - Office: NEBRASKA SERVI('I, CENTER Date: 
LIN 07 062 52772 
PETITION: Immigrant Petition for Alien Worker a\ an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(I)(A) of the Immigration and Nationalit) Act; 8 U.S.C. 9 1 153(b)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Oftice in ~OLII* case. All documents have been returned 
to the office that originally decided your case. ,411) fi~l-tht'r illqi~ir) 11ii1st bc made to that office. 
If you believe the law was inappropriately applicd or you habe additional information that you wish to 
have considered, you may tile a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
3 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing Form I-29OB, Notice of Appeal or Motion. n it11 a tie of $585. Any motion must be 
filed within 30 days of the decision that the motion sechb to reconsitlcr or reopen. as required by 8 C.F.R. 
3 103.5(a)( I )(i). 
r"&4~A 
Perry Rhew 
chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director. Nebraska Service Center, denied this employment-based 
immigrant visa petition on March 24, 2008. The Administrative Appeals Office (AAO) 
dismissed the petitioner's appeal of that decision on May 29. 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, the petitioner only specifically discussed two criteria that he felt he fulfilled, the 
receipt of lesser nationally or internationally recognized prizes or awards for excellence and the 
authorship of scholarly articles. The petitioner did not specifically address any other criteria in 
which the AAO failed to analyze or cite to specific errors on the part of the director in his motion 
to reopen. Therefore, even if he were to persuade us on two grou~lds, which he does not, he is 
required to meet at least three of the ten criteria at 8 C.F.II. 8 204.5(h)(3). With regard to his 
receipt of lesser nationally or internationally recognized prizes, the petitioner argued that he was 
"finally honored" with the IBRO Fellowship and that it should have been clear to the AAO that 
he would be granted such fellowship. In order to support tlie petitioner's contention that his 
articles received sustained acclaim, he submitted the following documentation: 
1. An article from Nalure ~Veuro~cience, dated May 2008, entitled "Cortical activity 
patterns predict speech discrimination ability,'' uhich cites to the article co-authored by 
the petitioner entitled. "Effect of auditor) cortes lesions on the discrinlination of 
frequency-modulated tones in rats." 
2. An article from xull~i,e Neuro~cience, dated febr~lary 2007, entitled "Synapse-specific 
reconsolidation of distinct fear memories in the lateral amygdala." whicli cites to the 
petitioner's article in item 1, 
3. An article from the Nutional In~titz11e of'fieulth I'uhlic ilc~.e,\.c, dated November 2007, 
entitled "Context Modulates the Expression of Conditioned Motor Sensitization, Cellular 
Activation, and Synaptophysin Immunoreactivity," which cites to another article co- 
authored by the petitioner entitled. "Topography of cortical projections to the dorsolateral 
neostriatum in rats: multiple overlapping sensorimotor pathways." 
4. An article from Fronlier~ iri 2Te~vo~~~~~l/o~7~~,, dated May 2308, entitled "Histochemical 
characterization, distribution and morphometric analysis of NADPII diaphorase neurons 
in the spinal cord of the agouti," whicli cites to an article co-authored by the petitioner 
entitled, "NADPII-diaphorase-positive neurons in tlie auditory cortex of young and old 
rats," 
5. An article from The Jozdrnal of Neuro,tcierzce, dated Deceniber 10, 2008, entitled "The 
Sensory Insular Cortex Mediates the Stress-Buffering Efficts of Safety Signals But Not 
Behavioral Control,'' which cites to the article co-authored by the petitioner named in 
item 3, 
6. An article from the Au.r/ruliu~z ,~3cou.,1lcu/ .Yoc.,'2iJ,. dated April 2006, entitled "Efferent 
Control of Hearing," which cites to all C~rLicIc co-authored oy tlie petitioner entitled, 
"Changes in neuronal actikit) ol'tlie inferior c~lliculus in rat afier temporal inactivation 
of the auditory cortex,.' 
7. An article from hreut.oscicnce. dated June 12, 2008. entitled " I'he distribution of nitric 
oxide synthase in the inferior colliculus of' a guinea pig." which cites to an article co- 
Page 3 
authored by the petitioner entitled, "Changes in the acoustically evoked activity in the 
inferior colliculus of the rat after functional ablation of the auditory cortex," and 
8. An article from Physiologiccll Resear-ch, dated 2008, entitled "Coding of 
Communications Calls in the Subcortical and Cortical Structures of the Auditory 
System," which cites to the article co-authored by the petitioner discussed in items 1 and 
2. 
In addition to providing the additional citations above to articles that the petitioner co-authored, - 
the petitioneralso submitted a letter of support 1h)m thc - 
dated June 18,2009. 
6, 
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. 3 103.5(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. ' 
Moreover, the petitioner must establish cligibilitl at the time of filing the immigrant visa 
petition. A petition cannot be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set of' facts. hl~riler. of k'ulightrk, 14 1&N Dec. 45, 49 (Comm. 
1971). All of the citations provided in items I througl~ 8 occurred after the filing of the 
petitioner's petition, which was December 27, 2006. As such. these additional citations will not 
be considered. 
Similarly, although the petitioner also argued that his IRRO Fellowship constituted the receipt of 
a lesser nationally or internationally recogni~ed prize or award for excellence he was not 
awarded his IBRO Fellowship until after the petition was filed. As previously indicated, a visa 
petition may not be approved based on speculation 01 liltuse eligibility or after the petitioner or 
beneficiary becomes eligible under a neu set of f'ac~s. 211u~fe~, 01 ku!~ghcrk. 14 I&N Dec. at 49. 
A petitioner may not make material changes to a petition in an cffhrt to make a deficient petition 
conform to USCIS requirements. ,Tee l\4u/~e~. of Izur~~n~i, 22 I&N Ikc. 169. 176 (Assoc. Comm. 
1998). Moreover, although the petitioner has stated that he receiied such fkllowship in his 
motion to reopen, no additional documentation was provided to support his receipt of such 
fellowship. Further, no additional documentation was provided to establish that the IBRO 
Fellowship is a nationally or internationally recognized prize or award of excellence in his field. 
Going on record without supporting docun~entary evidence is  tot sul'ficient for purposes of 
meeting the burden of proof in these proceedings. ,I.lr///el. of',Soffic*i. 23 1&h Dec. 158, 165 
(Comm. 1998) (citing Af(l/tcr- of Tt,ctr.cw.c. i'r,~if/ 01 I ~rlrfoi.\?i~r. 14 I&N Dcc. 190 (Reg. Comm. 
1972)). 
1 The word "new" is defined as "I. having existed 01. been ~nacle for only a short time . . . 3. Just discovered, found, or 
learned <new evidence> . . . ." Wrrnsrt:r<'s 11 N1.w R1vr:rrsir)F: UNI\~L.I~SII~'Y' DICI IONAIIY 792 (1984)(emphasis in 
original). 
Page 4 
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. Ahl4dz1. 485 U.S. 94 (1988)). A party seeking to 
reopen a proceeding bears a "heavy burden." INS I?. h~cltl, 485 li .S. at 1 1 0. 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 bascd on an incorrect application 
of law or U.S. Citizenship and Immigration (USCIS) policy. 8 C.F.K. # 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 Muffe~. of ('~rr7(1, 20 J&N Dec. 3 99. 403 (RIA 199 1). 
A motion to reconsider cannot be used to raise a iegai argun~ent that could have been raised 
earlier in the proceedings. Rather. the '.aciditiona; l~gal argumilnts" that may be raised in a 
motion to reconsider should flow from new lau or a de novo legal determination reached in its 
decision that may not have been addressed by the party. I'ilrther a niotion to reconsider is not a 
process by which a party may submit, in essence, the same brief prcsented on appeal and seek 
reconsideration by generally alleging error in the prior dccision. Instead, the moving party must 
specify the factual and legal issues raised on appeal that cbere decided in error or overlooked in 
the initial decision or must shou how a change in law lnaterially affects the prior decision. See 
Matter ofMedrano, 20 I&N Dec. 2 16.2 19 (BIA 1990. 199 i ). 
In this case, the petitioner failed to s~ppart his moticiri bbith any piecedcnt decisions or other 
argument to establish that the decision mas ba3ed 011 an incol-rcct appliiaiion of law or USCIS 
policy. The motion to reconsider will be disniisscd. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. tj 1361. IIere, 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 May 29, 2009, is affirmed, al~d the petition remains denied.