dismissed EB-1A Case: Plant Pathology

U.S. Citizenship 
and Immigration 
Services 
In Re : 17933004 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: FEB. 9. 2022 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a plant pathology researcher, seeks classification as an individual of extraordinary 
ability . 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 Nebraska Service Center denied the petition. We then dismissed the appeal and 
two subsequent motions. The matter is now before us on a third motion filing. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss 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). The implementing regulation 
at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, 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 meets these initial evidence requirements, 
we then consider the totality of the material provided in a final merits determination and assess whether 
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. See Kazarian v. USCIS, 596 F.3d 
1115 (9th Cir. 2010). 
A motion to reconsider is based on an incorrect application oflaw or policy, and a motion to reopen 
is based on documentary evidence ofnew facts. The requirements of amotionto reconsider are located 
at 8 C.F.R. § 103.5(a)(3), and the requirements of a motion to reopen are located at 8 C.F.R . 
§ 103.5(a)(2). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. Additionally, a review of any motion is limited to the bases 
supporting the prior adverse decision. 8 C.F.R. § 103.5(a)(l)(i). Thus, we examine any new 
arguments and facts to the extent that they pertain to our dismissal of the Applicant's second motion 
filing. 
II. ANALYSIS 
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner 
satisfied four of the initial evidentiary criteria: judging at 8 C.F.R. § 204.5(h)(3)(iv), original 
contributions of major significance at 8 C.F.R. § 204.5(h)(3)(v), scholarly articles at 8 C.F.R. 
§ 204.5(h)(3)(vi), and leading or critical role at 8 C.F.R. § 204.5(h)(3)(viii). Because he met the 
minimum of at least three criteria, the Director made a final merits determination and found that the 
Petitioner did not show sustained national or international acclaim and demonstrate that he is among 
the small percentage at the very top of the field of endeavor. On appeal, we conducted a de novo 
review of the proceeding and determined that the Petitioner fulfilled only two criteria, judging and 
scholarly articles, and we withdrew the Director's findings for the original contributions of major 
significance and leading or critical role criteria. As the record did not establish that the Petitioner 
complied with at least three criteria, we deemed it unnecessary to provide a final merits determination. 
In his first motion filing, the Petitioner indicated in part 2 on Notice of Appeal or Motion (Fonn I-
290B), that he was filing a motion to reopen and a motion to reconsider of the Director's decision. 
Specifically, he indicated: "Form I-140" (item 2, USCIS Form for the Application or Petition That is 
the Subject of This Appeal or Motion), i (item 3, Receipt Number for the 
Application or Petition), "EB-1" (item 4, Requested Nonimmigrant or Immigrant Classification), 
"02/15/2019" (item 5, Date of Adverse Decision), and "Nebraska Service Center" (item 6, Office That 
Issued the Adverse Decision). The Petitioner's responses to the questions in part 2 on Form I-290B 
reflected his filing of combined motions on the Director's decision rather than on our appellate 
decision. In his second motion, which was filed seven days after his first motion filing, the Petitioner 
stated that "[t]oday we discovered that we had used a Form I-290B that had an expiration date of 
02/04/2020" and submitted a more current edition of Form I-290B with the same responses as the 
prior Form I-290B. Again, the included USCIS form, petition receipt number, decision date, and 
office reflected the Petitioner's filing of combined motions on the Director's decision rather than on 
our appellate decision. 
We dismissed both motions as untimely filed because the motions were submitted 3 5 7 and 3 64 days, 
respectively, after the issuance of the Director's decision. 1 In the current motion, the Petitioner asserts 
that "it is an immense and obvious Service error was that USCIS assumed that the motion which was 
the subject of this Dismissal Order referred to reviewing the I-140 decision to deny, rather than the 
appellate decision to deny the appeal." 2 However, we did not assume that the motion filings were 
based on the Director's decision denying the petition. Rather, we adjudicated the Petitioner's motions 
based on his responses to the items in part 2 of Form I-290B, which indicated motion filings on the 
1 The Petitioner submits two copies ofthe same decision claiming that "[t]he Notice ofDismissal in Appendix A apparently 
refers to both filings." However, the record reflects that we issued two separate decisions on the same day for each motion 
filing I I andl 
2 The Petitioner also claims that"[v ]ery clearly the I-140form was whatwas being denied on 01/16/2020." On thecontm1y, 
the Director denied FormI-140on February 15, 2019, and we dismissed the appeal(Form I-290B) on January 16, 2020. 
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Director's decision denying the underlying petition. 3 Specifically, as indicated above, the Petitioner 
responded on his Form I-290B that he was filing a motion on his "Form I-140" rather than on his Form 
I-290 (appeal), that the receipt number was I (Form I-140) rather than 
I (Form I-290B), that the adverse decision was "02/15/2019"ratherthan O 1/16/2020 
(the date of our decision dismissing the appeal), and that office that issued the adverse decision was 
the "Nebraska Service Center" rather than the AAO. Accordingly, we adjudicated his motion filings 
based on his responses that conesponded to the Director's decision. 
Moreover, the Petitioner claims that Form I-290B was "only designed to appeal a denied PETITION 
OR APPLICATION" (emphasis in original), and the form makes it "impossible" to file a motion on 
an appellate decision. The Petitioner, however, did not conoborate his assertions with independent, 
objective evidence. Fmihennore, the regulations and filing instructions do not support his claims. 
Every fonn, benefit request, or other document must be submitted and executed in accordance with 
the form instructions. 8 C.F.R. § 103.2(a)(l ). The instructions for FormI-290B states that the primary 
purpose is to file "[a]n appeal with the Administrative Appeals Office (AAO)" or "[a] motion with the 
[USCIS] office that issued the latest decision in your case (including a field office, service center, or 
the AAO )" ( emphasis added). 4 Furthermore, the instructions for part 2 indicate to" [p ]rovide the name 
of the office that issued the decision that is the subject of your appeal or motion. If you are filing a 
motion on an AAO decision, the correct office is 'Administrative Appeals Office (AAO)"' 
( emphasis added). As demonstrated, the purpose of Form I-290B is not only to appeal denied petitions 
or applications but also to file motions on field office, service center, and AAO decisions. In addition, 
the instructions for part 2 of Form I-290B specifically address the filing of motions with the AAO. 
For the reasons discussed above, we conectly adjudicated the Petitioner's combined motion filing 
based on the inf ormation provided by him. Moreover, the Petitioner did not show that we erred in 
dismissing his combined motions as untimely filed as a matter of law or policy under 8 C.F.R. 
§ 103.5(a)(3). Furthermore, the Petitioner did not present new facts or establish how his inability to 
follow form instructions and properly complete form items would warrant reopening the proceeding 
under 8 C.F.R. § 103.5(a)(2). 
III. CONCLUSION 
The Petitioner did not establish that we inconectly applied law or policy. In addition, the Petitioner 
did not demonstrate new facts in order to reopen the proceeding. 
ORDER: The motion to reconsider is dismissed. 
FURTHER ORDER: The motion to reopen is dismissed. 
3 We retained jurisdiction over the combined motion filings of the Director's decision because we made the latest decision 
dismissingthe Petitioner's appeal. See 8 C.F.R. § 103 .5(a)(l )(ii). 
4 We note thatuscis.govrepeats to use Forml-290Bto file "[a]na ppeal with the Administrative Appeals Office (AAO)or 
"[a] motion with the USCIS office that issued the la test decision in your case (including a field office, service center, or 
theAAO)." 
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