dismissed EB-1A Case: Opera Singing

U.S. Citizenship 
and Immigration 
Services 
MATTER OF R-Y-
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: NOV. 23,2016 
MOTION ON ADMINISTRATIVE APPEALS OFFICE DECISION 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, an opera singer, seeks classification as an individual of extraordinary ability in the 
arts. This first preference classification makes immigrant visas available to those who can 
demonstrate their extraordinary ability through sustained national or international acclaim and whose 
achievements have been recognized in their field through extensive documentation. 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
satisfied any of the initial evidentiary criteria, of which he must meet at least three. The Petitioner 
appealed the matter to us and we dismissed the appeal, finding that he met only one criterion. We 
then denied the Petitioner's subsequent motion to reopen and reaffirmed our decision. The matter is 
now before us on a second motion to reopen and motion to reconsider. We will deny the motions. 
I. LAW 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). A petitioner can demonstrate 
sustained acclaim and the recognition of his or her achievements in the field through a one-time 
achievement (that is, a major, internationally recognized award). If that petitioner does not submit 
this evidence, then he or she must provide sufficient qualifying documentation that meets at least 
three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i)- (x) (including items such as awards, 
published material in certain media, and scholarly articles). Where a petitioner submits qualifying 
evidence under at least three criteria, we will then determine whether the totality of the record shows 
sustained national or international acclaim and demonstrates that the individual is among the small 
percentage at the very top of the field of endeavor.' 
1 See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 201 0) (discussing a two-part review where the documentation is first 
counted and then, if fulfilling the required number of criteria, considered in the context of a final merits determination); 
see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013); Rijal v. USCIS, 772 F. Supp. 2d 1339 (W.O. 
Wash. 2011), aff'd, 683 F.3d. 1030 (9th Cir. 2012); Matter ofChawathe, 25 I&N Dec. 369, 376 (AAO 2010) (holding 
that the "truth is to be determined not by the quantity of evidence alone but by its quality" .and that U.S. Citizenship and 
Immigration Services (USCIS) examines "each piece of evidence for relevance, probative value, and credibility, both 
individually and within the context of the totality of the evidence, to detennine whether the fact to be proven is probably 
true"). 
Matter of R- Y-
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). 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 oflaw or USCIS policy. 8 C.F.R. § 1 03.5(a)(3). 
II. ANALYSIS 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(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 did not submit a statement indicating whether the validity of the decision has been, or is, 
subject of any judicial proceeding. 
Notwithstanding the above, in dismissing the Petitioner's appeal, we concluded that he met the 
artistic display criterion under 8 C.F.R. § 204.5(h)(3)(vii) but did not satisfy any other claimed 
criteria, including the awards criterion under 8 C.F.R. § 204.5(h)(3)(i), the published material 
criterion under 8 C.F.R.§ 204.5(h)(3)(iii), and leading or critical role criterion under 8 C.F.R. 
§ 204.5(h)(3)(viii). In our most recent decision denying his motion to reopen, we found that 
although the Petitioner did not state new facts or submit affidavits, he did offer two testimonial 
letters addressing his work in the field of operatic performance. We thoroughly discussed the letters 
and determined that they did not satisfy any of the regulatory criteria, nor did they reflect evidence 
related to those criteria. For the reasons discussed below, we find the Petitioner has not met the 
requirements of a motion to reconsider or a motion to reopen in this proceeding. 
A. Motion to Reconsider 
On motion, the Petitioner submits a sworn statement describing his immigration history and 
problems with people who assisted him in filing his petition, including two attorneys and an 
immigration consultant. Specifically: (1) he indicates that his first attorney and immigratiQn 
consultant did not properly complete his petition, causing its initial rejection and resulting in delays 
in filing his adjustment of status application; (2) he contends that they never explained to the 
Director how his "accomplishments actually measured up to national or international [acclaim]"; (3) 
he states that his second attorney did not submit a brief and additional documentation at the time of 
the filing of the motion to reopen; rather .they were submitted approximately a month later; and ( 4) 
he discusses problems encountered with his other applications, such as his employment 
authorization, advance parole, and adjustment of status, which are beyond the scope of this 
proceeding. 
The Petitioner does not contend that our previous decision was made in error in accordance with an 
incorrect application of law or USCIS policy. The motion to reconsider does 11ot allege that the 
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(b)(6)
Matter of R-Y-
issues, as raised on the prior motion, involved the application of precedent to a novel situation, or 
that there is new precedent or a change in law that affects the denial of the previous motion. As 
noted above, a motion to reconsider must include specific allegations as to how we erred as a matter 
of fact or law in its prior decision, and it must be supported by pertinent legal authority. Because the 
Petitioner did not raise such allegations of error, we will deny the motion to reconsider. 
B. Motion to Reopen 
Regarding the 'motion to reopen, the Petitioner does not offer new evidence satisfying at least two 
additional regulatory criteria under 8 C.P.R. § 204.5(h)(3). Instead, the Petitioner presents copies of 
correspondence, applications and petitions, imd decisions for his prior immigration filings. In 
addition, the Petitioner requests consideration of his prior attorney's supplemental brief that was 
filed for his previous motion to reopen. Further, while the Petitioner submitted a program from the 
showing his current performance of we previously 
determined that he met the artistic display criterion. Accordingly, as the Petitioner has not offered 
new evidence to overcome the grounds of our prior decision, the motion does not meet the 
applicable requirements for a motion to reopen under 8 C.P.R. § 1 03.5(a)(2). 
Moreover, when a motion to reopen is based on a claim of ineffective assistance of counsel, the 
individual claiming such ineffectiveness must comply with the requirements set forth by the Board 
of Immigration Appeals in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). The Petitioner has not 
met these requirements. Further, even if the ineffective representation claim was established, it is 
not clear that the outcome of the instant matter was affected by prior counsels' alleged 
misconduct. In this case, we thoroughly reviewed the record of proceedings before us and 
determined that the Petitioner's documentary evidence did not meet at least three of the ten 
categories listed under 8 C.P.R. § 204.5(h)(3). For the reasons discussed above, we find that the 
Petitioner has not established a claim for ineffective assistance of counsel or demonstrated prejudice 
based upon the actions of former counsels in support of the motion to reopen. 
III. CONCLUSION 
The Petitioner has not stated new facts and the evidence does not overcome the grounds of denial 
from our latest decision. The Petitioner has not met his burden to establish eligibility for the 
immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N 
Dec. 127, 128 (BIA 2013). 
ORDER: The motion to reconsider is denied. 
FURTHER ORDER: The motion to reopen is denied. 
Cite as Matter of R-Y-, ID# 115711 (AAO Nov. 23, 2016) 
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