dismissed EB-1A Case: Sound Engineering

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: SEP. 01, 2023 In Re: 28128980 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a sound engineer and technical director, seeks classification as an alien of extraordinary 
ability. See Immigration and Nationality Act (the Act) section 203(b )(1 )(A), 8 U.S.C. § 1153(b )(1)(A). 
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, concluding that the Petitioner did not 
establish that he met the initial evidence requirement for the classification through evidence of a major, 
internationally recognized award or, in the alternative, meeting at least three of the evidentiary criteria 
at 8 C.F.R. § 204.5(h)(3). We dismissed a subsequent appeal, as well as a combined motion to reopen 
and reconsider. The matter is again before us on a motion to reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review , we will dismiss the 
motion . 
In our previous decision, we concluded that the Petitioner did not meet the requirements of either a 
motion to reopen or a motion to reconsider. Regarding the motion to reopen, we determined that while 
the documents intended to address the criteria at 8 C.F.R . §§ 204.5(h)(3)(viii) and (ix) had not been 
previously submitted, they were not new since they presented the same information contained in 
evidence already in the record . In addition, we acknowledged the submission of evidence related to 
membership in the Russian Music Union, but explained that the Petitioner had not previously claimed 
he met the criterion at 8 C.F.R. § 204.5(h)(3)(ii) and it was, therefore, not appropriately considered on 
motion. Regarding the motion to reconsider, we determined that "broad ly disagreeing with our 
conclusions" was insufficient to meet the requirements of the motion. 
A motion to reconsider must establish that our prior decision was based on an incorrect application of 
law or policy and that the decision was incorrect based on the evidence in the record of proceedings 
at the time of the decision. 8 C.F.R. § 103.5(a)(3). Our review on motion is limited to reviewing our 
latest decision. 8 C.F.R. § 103.5(a)(l)(ii) . We may grant motions that satisfy these requirements and 
demonstrate eligibility for the requested benefit. 
Relying on the instructions to Form I-290B, Notice of Appeal or Motion, 1 and Chapter 3.8 of the AAO 
Practice Manual, the Petitioner argues that neither one "restricts [the] definition of 'additional 
evidence"' and, thus, we should have addressed the criteria at 8 C.F.R. §§ 204.5(h)(3)(iv), (viii), and 
(ix). He contends that not considering this material was contrary to AAO policy and asserts that our 
analysis in the previous decision "does not make sense." 
However, Chapter 3.8 of the AAO Practice Manual concerns appeals, whereas our most recent 
decision dismissed the Petitioner's combined motion to reopen and reconsider. The portion of our 
decision discussing the evidence submitted in support of these three evidentiary criteria focused not 
on whether this additional evidence should be accepted on appeal, but on whether it constituted "new" 
facts per 8 C.F.R. 103.5(a)(2), the regulation concerning motions to reopen. The Petitioner does not 
contest our conclusion that since these previously unsubmitted documents only restated facts that were 
already in the record, they did not constitute "new" facts and, therefore, did not meet the requirements 
for a motion to reopen. 
The Petitioner also asserts that our reliance upon two precedent decisions of the Board oflmmigration 
Appeals ("the Board") was inappropriate because they did not involve the "processing of petitions for 
benefits." Citing to Matter ofM-F-O-, we explained that he had not only failed to address the evidence 
of his membership in the Russian Music Union in his brief, but he also had not previously claimed 
eligibility for the criterion at 8 C.F.R. § 204.5(h)(3)(ii). 2 Regardless, any new facts submitted on 
motion must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l); see also Matter oflzummi, 
22 I&N Dec. 169, 175-76 (Assoc. Comm'r 1998); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. 
Comm'r 1971).3 
While he acknowledges that the Board's precedent decisions are binding on U.S. Citizenship and 
Immigration Services in cases involving the same issues, he argues that our reliance upon Matter of 
Valdez, 27 I&N Dec. 496,496 n.l (BIA 2018), to confirm our conclusion that issues not discussed on 
appeal were deemed to be waived, was also inappropriate since that decision also involved removal 
proceedings and not the adjudication of petitions. The Petitioner asserts that we should have 
considered the exceptions he presented to the waiver of issues on appeal found in decisions from the 
Ninth Circuit Court of Appeals, which has jurisdiction due to his place of residence. The Petitioner 
does not, however, cite to precedent decisions supporting his contention that the waiver of issues on 
appeal in removal proceedings should be treated differently than the same issue in the adjudication of 
petitions. Therefore, he has not established that our citation to Board precedent decisions in support 
of our conclusion was contrary to law or policy. 
Further, the general rule in the Ninth Circuit is that issues not raised in an appeal brief are deemed to 
be waived. See Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003) (finding that matters not 
specifically and distinctly argued in an opening brief are not ordinarily considered on appeal); Rizk v. 
Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed 
waived). The Petitioner generally states that he renews his arguments from his previous motion 
1 The Petitioner does not, however, further explain how our decision was inconsistent with the instructions. 
2 See Matter of M-F-O-, 28 I&N Dec. 408, 410 n.4 (BIA 2021), in which the Board refused to consider an appellant's 
humanitarian claims presented for the first time on appeal. 
3 The petition was filed on August 11, 2020 and the Petitioner did not become a member the Russian Music Union until 
October 28, 2020. 
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regarding exceptions to the waiver of issues found in Ninth Circuit decisions. But while he previously 
cited to decisions supporting exceptions to this general rule, based upon prejudice to the opposing 
party and manifest injustice, he did not explain in his previous motion, nor does he in this motion, how 
or why they should apply here. 
On motion to reconsider, the Petitioner has not established that our previous decision was based on an 
incorrect application of law or policy and was incorrect based upon the record of proceedings at the 
time we issued our decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reconsider is dismissed. 
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