dismissed EB-1A Case: Oncology

identifying data deleted to 
prevent clearly unwarr~teO 
invasion of personal pnvacy 
PI ffil JC COpy 
DATE: JUL 30 20\SFFlCE: TEXAS 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 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(1 )(A) of the Immigration and Nationality Act; 8 U.S.c. § lI53(b)(1 )(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 AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen 
in accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition on November 4, 2008. The Administrative Appeals Office (AAO) dismissed the 
petitioner's appeal of that decision on September 21,2009. On April 14, 2011, the AAO granted 
the petitioner's motion to reopen and motion to reconsider and affirmed its prior decision. The 
matter is now before the AAO on a second motion to reopen and 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. § 103.S(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.S(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.S(a)(4). 
Notwithstanding the above, in the decision of the AAO dismissing the petitioner's original 
appeal, the AAO specifically and thoroughly discussed the petitioner's evidence and 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.S(h)(3). 
In the decision of the AAO affirming the denial of the original appeal, the AAO specifically and 
thoroughly discussed the petitioner's evidence and found that the petitioner minimally satisfied 
only the jUdging criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(iv) and the 
authorship of scholarly articles criterion pursuant to the regulation at 8 C.F.R. § 204.S(h)(3)(vi). 
On motion, the petitioner submitted a brief which generally reasserts previous claims, a 
translation of a portion of an interview with the manager and Editor-in-Chief of the journal 
Understanding Cancer and an abstract from the 2010 American Society of Clinical Oncology 
Annual Meeting. The AAO notes that, along with the timely filed motion, the petitioner 
submitted a letter requesting "more time ... to file a motion to reconsider or a motion to reopen." 
The petitioner submitted additional evidence on December 19, 2011 and March 20, 2012. 
Although the regulation at 8 C.F.R. § 103.S(a)(l )(iii) allows for the motion to be accompanied 
by a brief, the regulations do not allow additional time to submit a brief or additional evidence 
after the filing of a motion. Compare 8 C.F.R. § 1 03.3(a)(2)(vii), which allows the AAO to grant 
additional time to submit a brief after the filing of an appeal. Page 2 of the instructions to the 
Form 1-290B clearly explains that "[a]ny additional evidence must be submitted with the 
motion" and there is no provision for an extension. Notwithstanding the above, the additional 
evidence will be discussed below. 
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. § 103.5(a)(2). Based on the plain meaning of "new," a new 
Page 3 
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) and, therefore, cannot be considered a proper basis 
for a motion to reopen. Regarding the certified translation of the interview, the petitioner previously 
submitted both the certified translation and a copy of the original document in Farsi. Therefore, this 
cannot be considered new evidence. With regard to the abstract, this occurred after the filing of the 
petition on July 27, 2007. The petitioner also refers to another abstract that "is not finish[edJ yet" in 
her brief. 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)(l), 
(12); Matter of Kaligbak, 14 I&N Dec. 45,49 (Reg'l Comm'r 1971). A petition cannot be 
approved at a future date after the petitioner becomes eligible under a new set of facts. Matter of 
Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That decision further provides, citing Matter of 
Bardouille, 18 I&N Dec. 114 (BIA 1981), that U.S. Citizenship and Immigration Services 
(USCIS) cannot "consider facts that come into being only subsequent to the filing of a petition." 
ld. at 176. 
The AAO notes that the petitioner included a purported list of citations to her articles in her brief, 
but does not submit any evidence as to the source. Going on record without supporting 
documentary evidence is not sufficient for purposes of meeting the burden of proof in these 
proceedings. Malter ofSoffici, 22 I&N Dec. 158, 165 (Comm'r 1998) (citing Matter of Treasure 
Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Finally, regarding the evidence submitted after the filing of the motion, the petitioner submitted a 
letter of recommendation and a letter from the Editor in Chief of Understanding Cancer 
confirming that the petitioner's name was "mistakenly omitted from the list of the Editorial 
Board" in English for the "'Vol 2, Issue No.5, [Wlinter 2002'" issue. Regarding the letter of 
recommendation, there is no explanation as to why this letter could not previously have been 
submitted. Regarding the letter from the Editor in Chief, the petitioner was put on notice of the 
omission of her name in English on September 21,2009. The petitioner provides no explanation 
for her failure to contact the Editor in Chief for more than two years. Regardless, even if the 
AAO were to consider these letters, the petitioner would still fail 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), as the 
petitioner's position as an editor relates to a criterion that the AAO already found she meets. 
As stated above, 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) and, therefore, cannot be considered a 
proper basis for a motion to reopen. 
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 IT NEW R1VERS1DE UN1VERS1TY D1CTIONARY 792 (l984Xemphasis 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. 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. 
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 USC IS 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 of 
Cerna, 20 I&N Dec. 399,403 (B1A 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier 
in the proceedings. See Matter o/Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). 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 could 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. Matter of O-S-G-, 24 I&N Dec. 56, 58 (B1A 2006). 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. Id. at 60. 
The motion to reconsider does not allege 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 petitioner has failed to raise such allegations of error in her motion to reconsider, the AAO 
will dismiss the motion to reconsider. 
Oral Argument 
The regulations do not provide for oral argument in connection with a motion. 
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 April 14, 20 II is affirmed, and the petition remains denied.