dismissed EB-1A Case: Performing Arts

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBLIC COpy 
IN RE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
Office: NEBRASKA SERVICE CENTER Date: FEB 1 0 2011 
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 § I 1 53(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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 CF.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 CF.R. § 103.5(a)(1)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
'/{ ltJf?/{J/J·IC/C. 
/ 
Perry Rhew 
.. Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied this employment-based 
immigrant visa petition on August 27, 2008. The Administrative Appeals Office (AAO) 
dismissed the petitioner's appeal of that decision on November 9,2009. The matter is now before 
the AAO on a motion to reopen. The motion 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. § 103.5(a)(1)(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 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 motion must 
be dismissed pursuant to the regulation at 8 C.F.R. § 103.5(a)(4). 
Notwithstanding the above, in the decision of the AAO dismissing the petitioner's original 
appeal, the AAO found that the petitioner failed to establish that he meets at least three of the 
regulatory criteria pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). Specifically, the AAO 
found that the petitioner failed to establish eligibility for the awards criterion pursuant to the 
regulation at 8 C.F.R. § 204.5(h)(3)(i), the membership criterion pursuant to the regulation at 8 
C.F.R. § 204.5(h)(3)(ii), the published material criterion pursuant to the regulation at 8 C.F.R. 
§ 204.5(h)(3)(iii), the display criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(vii), 
and the leading or critical role criterion pursuant to the regulation at 8 C.F.R. § 204.5(h)(3)(viii). 
In fact, the AAO found that the petitioner failed to establish eligibility for any of the criteria 
pursuant to the regulation at 8 C.F.R. § 204.5(h)(3). 
On motion, counsel submitted the following documentation: 
1. Screenshots from www.cn.wikipcdia.org regarding 
Newspapers; 
2. A screenshot from the _ Post; 
3. Photographs of three trophies; 
4. A letter from 
5. A letter from 
6. Screenshots regarding 
7. An uncertified translation of a document entitled, 
•••••• ';and 
of 
Page 3 
8. The Magazine. 
Counsel also argues: 
The Decision further states that it would not consider evidence of the Petitioner's 
extraordinary ability based on performances that took place after filing his 1-140 
on the grounds that "a petitioner must establish eligibility at the time of filing; a 
petition cannot be approved at a future date after the petitioner or beneficiary 
becomes eligible under a new set of facts." The government may consider new 
facts presented in a motion to reopen. 
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.S(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. I 
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.S(a)(2). In addition, the petitioner failed to explain why the 
evidence was previously unavailable and could not have been submitted earlier. The petitioner has 
been afforded three different opportunities to submit this evidence: at the time of the original filing 
of the petition on February 22, 2007, in response to the director's request for additional evidence on 
July 7, 2008, and at the time of the filing of the appeal on September 24, 2008. 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.S(a)(2) and, therefore, cannot be considered a proper basis for a motion to reopen. 
Moreover, while a motion to reopen must be supported by affidavits or other documentary 
evidence, the documentation must be about events occurring before or at the time of the filing of 
the petition. Eligibility must be established at the time of filing. 8 C.F.R. §§ 103.2(b)(1), (12); 
Matter of Katigbak, 14 I&N Dec. 4S, 49 (Regl. Commr. 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 Bardo u ille, 
18 I&N Dec. 114 (BIA 1981), that we cannot "consider facts that corne into being only subsequent 
to the filing of a petition." Id. at 176. 
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, S02 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. 
I The word "new" is defined as "\. having existed or been made for only a short time ... 3. Just discovered, found, or 
learned <new evidence> .... " WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 792 (I984)(emphasis in 
original). 
Page 4 
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 is dismissed, the decision of the AAO dated November 9, 
2009, is affirmed, and the petition remains denied.