dismissed EB-1A Case: Research

(b)(6)
DATE: OC113 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immi gration Servic es 
Adminis trativ e 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)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b )(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:ijwww.usds.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
;;P2f;-
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENTDEC~ION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on December 5, 2012. The Administrative Appeals Office (AAO) upheld the director's 
decision, and dismissed the appeal on July 26, 2013. The matter is now before the AAO on a motion 
to reopen and a motion to reconsider. The motion to reopen will be dismissed. The motion to 
reconsider will also be dismissed. 
In order to properly file a motion, the regulation at 8 C.P.R. § 103.5(a)(l)(i) provides that the affected 
party or the attorney or representative of record must submit the complete motion within 30 days of 
service of the unfavorable decision. If the decision was mailed, the motion must be filed within 33 
days. See 8 C.F .R. § 103 .8(b ). The date of filing is not the date of submission, but the date of actual 
receipt with the required fee. See 8 C.P.R.§ 103.2(a)(7)(i). 
The record indicates that the AAO issued the decision on July 26, 2013. It is noted that the AAO 
properly gave notice to the petitioner that it had 33 days to file the motion. The petitioner dated the 
motion August 8, 2013 but included supporting evidence dated after that date. The present motion 
was not received, however, until September 4, 2014, or 40 days after the 
AAO issued its decision. The 
petitioner states within Part 3 of the Form I-290B: "I received the AAO notice after 10 days of decision 
[sic], so please accept my application include [sic] the 10 days of delay and add 33 days as the time 
limits." Notice by mail is complete upon mailing. 8 C.P.R. § 103.8(b). Neither the Act nor the 
pertinent regulations grant the AAO authority to extend this time limit. Accordingly, the petitioner 
untimely filed the present motion. · The petitioner has not explained why his failure to timely file the 
Form I-290B, Notice of Appeal or Motion, was reasonable and beyond his control such that USCIS can 
exercise discretion to accept the late motion. 8 
C.P.R.§ 103.5(a)(l)(i) . 
Additionally, 8 C.P.R. § 103.5(a)(l) 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 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; 
(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. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
In .this case, the petitioner failed to submit a statement indicating if the validity of the AAO's 
unfavorable decision has been or is the subject of any judicial proceeding as required under 8 C.F.R. 
§ 103.5(a)(1)(C). 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 be dismissed pursuant to 
the regulation at 8 C.F.R. § 103.5(a)(4) without regard to the claims contained within the motion. 
Finally, 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 fact 
is found to be evidence that was not (\vailable and could not have been discovered or presented in the 
previous proceeding .1 The petitioner has not explained why he could not have submitted the evidence 
supporting the motion previously. For example, the director's request for additional evidence and denial 
noted that the documents purporting to show citations were insufficient. The petitioner now 
incorporates new citation listings within his statement, although he does not submit the actual printouts 
from the electronic online resource. Regardless, he does not explain why he could not have 
documented his citations previously. 
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 U.S. 
Citizenship and Immigration (USCIS) 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, 402-403 (BIA 1991). In the motion, the petitioner has not asserted that the 
AAO misapplied the law. 
The motion will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reopen is dismissed. The motion to reconsider is dismissed. The AAO's 
decision dated July 26, 2013, is affirmed, and the petition remains denied. 
1 
The word "new" is defined as "1. Having existed or been made for only a short time ... 3. Just discovered, 
found, or learned <new evidence> . " Webster's New College Dictionary (3d Ed 2008). (Emphasis in 
original).