dismissed EB-1A Case: Performing Arts

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
DATE: JUL 0 2 2012 
IN RE: Petitioner: 
Benellciary: 
Office: NEBRASKA SERVICE CENTER 
U.S. Dcpllrtmcnt of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative i\ppeal~ Office (AAO) 
20 MassachusetLs Ave., N.W., MS 2090 
WashingtDn, DC 20529·2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ahility Pursuant to Section 
Z03(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(J)(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 I·2Y013, 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. Plcase be aware that 8 C.F.R. § 103.5(a)(1)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
cYJ:-~ 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nehraska Service Center, denied the employment-based immigrant 
visa petition on August 27, 200H. The Administrative Appeals Office (AAO) upheld the director's 
decision, and dismissed the appeal on Novemher 9, 2009. The petitioner filed a motion to reopen the 
AAO appellate dismissal, which was dismissed on February 10,2011. The matter is now before the 
AAO on a second motion to reopen. The motion will be dismissed. 
The regulation at 8 C.F.R. § 103.5(a)(I) informs the public of the filing requirements for a motion 
and provides in pertinent part: 
A motion shall be submitted on Form I-290B and may be accompanied by a brief. It must be: 
(A) In writing and signed by the affected party or the attorney or representative of record, if 
any; 
(B) Accompanied by a nonrefundable fee as set forth in § 103.7; 
(C) Accompanied by a statement abollt whether or not the validity of the IInfavorable 
decision has been or is the slIbject of any jlldicial proceeding and, if so, the cOllrt, natllre, 
date, and statlls or resllit of the proceeding; 
(D) Addressed to the official having jurisdiction; and 
(E) Submitted to the office maintaining the record upon which the unfavorable decision was 
made for forwarding to the official having jurisdiction. 
(Emphasis added.) 
In this case, the petitioner failed to submit a statement indicating if the validity of the AAO's 
unfavorable decision has been or is subject of any judicial 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. As such, the motion must bc dismissed pursuant to the regulation at 8 C.F.R. 
§ 103.5(a)(4) without regard to the claims contained within the motion. 
Notwithstanding this fundamental defect of the petitioner's failure to meet a regulatory requirement 
for the filing of motions, the AAO will review the merits of the present motion. The AAO's analysis 
within this motion is limited to the issues contained in the most recent decision on the motion to 
reopen dated February 10, 2011. The issue within the previous motion to reopen that the petitioner 
may address within this decision is related to the AAO's determination that, when the petitioner filed 
the previous motion, he failed to provide evidence that could be considered new. A motion to 
reopen is designed to afford the petitioner an opportunity to submit new evidence that may not have 
been available previously. It is not intended to allow the petitioner to improve upon the previously 
deficient evidence that failed to meet the clearly identified regulatory requirements. In addition, on 
motion a petitioner must still establish eligibility at the time of filing; a petition cannot be approved 
at a future date after the pelItlOner becomes eligible under a new set of facts. See 8 C.F.R. 
§ 103.2(b)(12); Matter of Katigbak. 14 I&N Dec. 45. 49 (Reg'l Comm'r 1971). Moreover, the 
AAO cannot "consider facts that come into being only subsequent to the filing of a petition." Matter 
ofIzummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998) (citing Matter of Bardouille, 18 I&N Dec. 
114 (BIA 1981». Ultimately, in order to be meritorious in fact, a petition must meet the statutory 
and regulatory requirements for approval as of the date it was filed. Ogundipe v. Mukasey, 541 F.3d 
257,261 (41h Cir. 2008). The petitioner failed to demonstrate that the newly submitted evidence on 
motion was both (1) not available and could not have been discovered or presented in the previous 
proceeding and (2) relates to eligibility as of the date of filing. 
The evidence the petitioner submits with the present motion is an informational guide to an Indian 
Festival dating back to 2011 featuring the ~ compact disc with the petitioner' s 
performances, and an undated statement from _ with a notary seal dated February 28, 
2011. Additionally, within counsel's brief accompanying the present motion, he claims that two 
forms of evidence submitted with the previous motion to reopen did, in fact, qualify as new evidence 
as they were not available to the petitioner prior to filing the previous motion. The evidence counsel 
. a poster titled, 
lll<lgaLlll~ published on April 
11, 2010. The petitioner asserts in his statement accompanying the present motion to reopen that 
both the uncertified translation of the poster and the magazine were unavailable to him and that he 
""IJpt;leu across this evidence meeting with another dancer, from the 
The petitioner also asserts of the 
to provide a sworn affidavit from or other 
evidence to corroborate these claims. Going on record without supporting documentary evidence is 
not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SoJjlci, 
22I&N Dec. 158, 165 (Assoc. Comm'r 1998) (citing Matter of Treasure Craft of California, 
14I&N Dec. 190 (Reg'l Comm'r 1972)). Additionally, in reference to the South Asian Music 
Society magazine published on April 11, 2010, this evidence cannot be considered as it was not in 
existence until after the petitioner filed the previous motion to reopen on December 10, 2009. 
Moreover, it does not relate to the petitioner's eligibility as of the date of filing on February 22, 
2007. Consequently, neither form of evidence will be considered as new evidence that might serve 
as a basis to grant the present motion to reopen. As a result, the AAO acted appropriately when it 
did not consider the evidence and dismissed the previous motion to reopen. 
Counsel further asserts that the AAO erred in failing to consider new evidence responding to the 
AAO's 2009 decision concluding that the record lacked evidence that the published material 
appeared in major media. The director, however, reached the same conclusion in the August 27, 
2008 decision, placing the petitioner on notice of this deficiency. The petitioner was put on notice of 
required evidence and given a reasonable opportunity to provide it for the record on appeal. The 
petitioner failed to submit the requested evidence and instead submitted it on motion. The AAO did 
not err in failing to consider this evidence. See Matter of Soriano, 19 I&N Dec. 764, 766 (BIA 
1988); Matter ofObaigbena, I'! I&N Dec. 533, 537 (BIA 1988). 
Page 4 
Counsel further asserts that the director erred in failing to consider evidence of awards. Counsel 
does not explain why the AAO should have reopened the matter to consider awards it already noted 
lacked supporting evidence of their significance. Similarly, counsel fails to explain why the AAO 
erred in reopening the matter to consider letters that were already part of the record. 
Counsel's brief accompanying the present motion puts forth his interpretation of section 
203(b )(1 )(A)(iii), which states: 
Aliens with extraordinary ability. - An alien is described in this subparagraph if -
(i) the alien has extraordinary ability in the sciences, arts, education, business, or 
athletics which has been demonstrated by sustained national or international acclaim 
and whose achievements have been recognized in the field through extensive 
documentation, 
(ii) the alien seeks to enter the United States to continue work 10 the area of 
extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit prospectively the 
United States. 
Counsel focused on the word "prospectively" in subparagraph (iii) and stated: "According to this 
statutory language evidence of continuing extraordinary ability may be submitted not to demonstrate 
such extraordinary ability at the time of filing but that his abilities have benefited prospectively the 
United States." Counsel's reading of the law ignores the regulatory requirement that a petitioner 
demonstrate eligibility for the classification sought at the time of the petition filing. 8 C.F.R. 
§§ 103.2(b)(I), (12). A petition may not be approved if the petitioner was not qualified at the 
priority date, but expects to become eligible at a subsequent time. See Matter of Katigbak, 14 I&N 
Dec. at 49. Counsel provided no legal analysis to support his interpretation that the aforementioned 
section of the Act allows an alien to apply for an immigrant classification prior to actually being 
eligible. As USCIS may adjudicate a petition on the same date it is properly filed, so must the 
petitioner be able to demonstrate eligibility on this same date. Additionally, the use of the word 
"prospectively" in the Act contemplates that the alien must, at some point in the future, be beneficial 
to the United States; not that the alien may garner achievements and recognition after filing to 
overcome a lack of acclaim as of that date. Even assuming the evidence did demonstrate that the 
petitioner prospectively benefitted the United States after filing the petition pursuant to section 
203(b)(1)(A)(iii) of the Act, such evidence cannot overcome the AAO's conclusion that the 
petitioner did not demonstrate sustained national or international acclaim as of the date of filing 
pursuant to section 203(b )(1 )(A)(i) of the Act. 
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. Ablldll, 485 U.S. at 108 (1988»). 'There is a strong 
-Page 5 
public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the 
adversaries a fair opportunity to develop and present their respective cases." INS v. Ahudll, 485 at 107, 
Based on its discretion, "[T]he [USCIS] has some latitude in deciding when to reopen a case. [USCIS] 
should have the right to be restrictive, Granting such motions too freely will permit endless delay. , , 
by aliens creative and fertile enough to continuously produce new and material facts sufficient to 
establish a prima facie case." Id. at 108. The result also needlessly expends the time and efforts of the 
triers of fact who must attend to the filing requests. Id. A party seeking to reopen a proceeding bears a 
"heavy burden." [d. at 110. With the current motion, the petitioner has not met that burden. 
The petitioner has been afforded at least four distinct opportunities to submit evidence: at the time of 
the petition's original filing on February 22,2007; in response to the director's request for additional 
evidence pursuant to the regulation at 8 C.F.R. § 103.2(b)(8) dated July 7, 2008; within his appeal 
filed on September 24, 2008; and at the time of the first motion to reopen on December 10, 2009. A 
review of the evidence that counsel submits on motion, relating to the previous motion reveals no 
fact that could be considered "new" under 8 C.F.R. § 103.5(a)(2) for the reasons described above. 
Therefore, the petitioner has not provided evidence that can be considered a proper basis for a 
motion to rcopen. As a result, this evidence will not be considered. 
Pursuant to 8 C.F.R. § 103.5(a)(I), a motion must be accompanied by a statement indicating if the 
validity of the AAO's unfavorable decision has been or is the subject of any judicial proceeding. As the 
petitioner failed to submit such a statement accompanying the motion to reopen, the regulations at 
8 C.F.R. § 103.5(a)(4) require that the motion be dismissed. Moreover, according to 8 C.F.R. 
§ 103.5(a)(2), a motion to reopen must state the new facts to be provided and be supported by affidavits 
or other documentary evidence. The petitioner has not filed a proper motion to reopen. The request 
was not accompanied by any evidence that can be considered new evidence under 8 C.F.R. 
§ 103.5(a)(2) that was (1) not available and could not have been discovered or presented in the previous 
proceeding (2) relates to the petitioner's eligibility as of the date of tiling. A request for motion must 
meet the regulatory requirements of a motion to reopen at the time of filing. 
Tbe 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 is dismissed. The decision of the AAO dated February 10,2011, is 
affirmed, and the petition remains denied.