dismissed EB-1A Case: Stage Acting

U.S. Citizenship 
and Immigration 
Services 
In Re: 20608366 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: JUNE 8, 2022 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a stage actor, seeks classification as an individual of extraordinary ability. See 
Immigration and Nationality Act(the Act) section 203(b)(l)(A) , 8 U.S.C. § 1153(b)(l)(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 record did not 
establish that the Petitioner had satisfied at least three of ten initial evidentiary criteria, as required. 
We dismissed the Petitioner's appeal , concluding that the Petitioner satisfied the initial evidentiary 
requirements, but did not establish , as required, that she has sustained national or international acclaim 
and is an individual in the small percentage at the very top of the field . The Petitioner filed a combined 
motion to reopen and reconsider , which we dismissed as untimely. The matter is now before us on a 
second combined motion to reopen and reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit 
Section 291 of the Act, 8 U.S.C . § 1361. Upon review, we will dismiss the motion . 
I. LAW 
Section 203 (b )(1 )(A) of the Act makes immigrant visas available to individuals with 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; who seek to enter the United States to continue work in the area of 
extraordinary ability; and whose entry into the United States will substantially benefit prospectively 
the United States. 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 international 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 criteria 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 the initial evidence requirements (through either a one-time achievement or 
meeting three lesser criteria), 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) (discussing a two-part review where 
the documentation is first counted and then, if fulfilling the required number of criteria, considered in 
the context of a final merits determination); see also Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 
(D.D.C. 2013); Rijalv. USCIS, 772 F. Supp. 2d 1339 (W.D. Wash. 2011). 
II. MOTION REQUIREMENTS 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must 
state the reasons forreconsideration and establish thatthe decision was incorrect based on the evidence 
of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet 
applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reopening or 
reconsideration, a petitioner must not only meet the formal filing requirements (such as submission of 
a properly completed Form 1-290B, Notice of Appeal or Motion, with the correct fee), but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See8 C.F.R. § 103.5(a)(4). 
A petitioner must file a motion to reconsider within 3 0 days of the decision that the motion seeks to 
reconsider. A petitioner must file a motion to reopen within 3 0 days of the decision that the motion 
seeks to reopen, but a delayed filing may be excused in our discretion if the delay was reasonable and 
was beyond the petitioner's control. 8 C.F.R. § 103.5(a)(l)(i). 
III. ANALYSIS 
On September 11, 2020, U.S. Citizenship and Immigration Services (USCIS) extended temporary 
filing flexibilities relating to USCIS requests, notices, and decisions issued on or before January 1, 
2021. In its announcement, USCIS stated: 
USCIS will consider a response to the above requests and notices received within 60 
calendar days after the response due date set in the request or notice before taking any 
action. Additionally, wewillconsideraFormN-336 orForml-290B [Notice of Appeal 
or Motion] received up to 60 calendar days from the date of the decision before we take 
any action. 1 
The flexibilities described above were in effect when we dismissed the Petitioner's appeal on 
December 28, 2020. The Petitioner mailed her first motion on March 9, 2021; USCIS received the 
1 Sec https:/ /www.uscis.gov/news/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-1. 
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filing on March 15, 2021, 77 days after we issued our appellate decision. The date of receipt is 
considered to be the filing date. See 8 e.F.R. § 103 .2( a)(7). 
The Petitioner's first motion included a letter acknowledging the untimely filing, blaming the 
"misleading and contradictory" wording ofUSeIS' public notice for leading the Petitioner to believe, 
at first, that the deadline to file a motion had been extended for 60 days. We dismissed the motion, 
stating that the Petitioner's explanation did not establish that the delay in filing was reasonable and 
beyond the Petitioner's control. 
In her second motion, the Petitioner repeats the assertion that USeIS' guidance was ambiguously 
worded. The Petitioner states: "a plain reading of the users notice ... informed that the deadline 
for filing the I-290B was 60 days after the response due date - in this case, March 30, 2021." The 
Petitioner contends that the users notice effective established two different deadlines, and that her 
first motion was timely because she filed it before the second deadline. 
The Petitioner, however, misreads this guidance. The users notice gave parties an additional 60 days 
to submit a "response" to a "request or notice," but a motion is not a response to a request or notice. 
Rather, it is a filing, accompanied by a fee. We note that the same users notice refers, elsewhere, to 
a "request, notice, or decision," thereby differentiating between the three types of users 
communication. The same users notice extended the filing period for Form I-290B to a total of 60 
days, which effectively grants a 30-day extension. The Petitioner acknowledged as much in the letter 
that accompanied the first motion. 
By regulation, the scope of a motion is limited to "the prior decision." 8 C.F.R. § 103.5(a)(l)(i). 
Therefore, the filing before us is not a motion to reopen and reconsider the denial of the petition or the 
initial dismissal of the appeal. Instead, the filing is a motion to reopen and reconsider our most recent 
decision, which rested entirely on the issue of timeliness. 
The Petitioner has not shown any error of fact or law in our dismissal of the first motion. Therefore, 
the latest motion does notmeetthe requirements of a motion to reconsider. Likewise, the latest motion 
does not include any new facts that bear on the dismissal of the previous motion. Therefore, it does 
not meet the requirements of a motion to reopen. 
The latest motion includes the same evidence submitted with the previous, untimely motion. Apart from 
prefatory language concerning the delay in filing the March 2021 motion and filing flexibilities, the 
accompanying brief is identical to the brief filed with the earlier motion. Re-filing the same motion does 
not overcome the prior untimely filing. Motions for the reopening of immigration proceedings are 
disfavored for the same reasons as petitions forrehearing andmotions for a new trial on the basis of newly 
discovered evidence. INS v. Doherty, 502U.S. 314,323 (1992) (citingJNS v. Abudu, 485U.S. 94(1988)). 
Furthermore, while 8 e.F.R. § 103.5(a)(l )(i) gives us discretion to accept an untimely motion to reopen 
if the delay is reason ab le and beyond the Petitioner's contra 1, there is no such provision for untimely 
motions to reconsider. 2 
2 A motion to reopen maybe delayed by efforts to locate and obtain supporting evidence, a factor that would not come 
into play fora motion to reconsider where new evidence is not accepted. 
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Even so, we will briefly note that the Petitioner's prior motion, even if it were timely, would not likely 
have resulted in approval of the petition. The Petitioner argues that "New York City is the center of 
theater in the United States, and arguably the world, therefore, theater actors in New York City do 
enjoy a level of national and international success, as they are often viewed and recognized by theater 
goers worldwide." We do not agree with this assertion. The presence of acclaimed actors in New 
York does not compel the conclusion that every actor in New York is, therefore, acclaimed, or that 
acting in New York inherently conveys sustained national or international acclaim. The evidence 
submitted by the Petitioner shows thatthere is a hierarchy of theaters in the city, including"Broadway, 
Off-Broadway, and Off-Off-Broadway." 
The remainder of the brief concerns the Petitioner's satisfaction ofindividual evidentiary criteria under 
8 C.F.R. § 204.5(h)(3), although we have already found that she satisfied three of those criteria. For 
instance, the Petitioner submits information about famous actors who received a particular theatrical 
award. She essentially claims that, because she received the same award, we should infer that she has 
achieved a comparable level of acclaim. While some prominent actors received the same award, the 
Petitioner does not show that they achieved their prominence through the performances that won the 
award. Rather, she identifies them as winners or nominees of higher-profile awards such as the 
Academy Award and the Golden Globe, which the Petitioner herself does not claim to have won. 
Furthermore, the Petitioner does not document that her receipt of the award resulted in significant 
media attention or coverage. The media coverage documented on motion consists oflocal television 
appearances to promote upcoming productions, with no indication that these broadcasts reached a 
national or international audience and were, therefore, able to contribute to acclaim beyond a local 
level. A local station's affiliation with a national or international network does not inherently establish 
that the larger network carries all the local affiliate's programming. 
We will not further discuss the arguments and evidence submitted with the first motion, because it lies 
beyond the proper scope of the motion now under consideration limited to a procedural question. But 
the brief discussion above serves to demonstrate that the procedural issue is not the sole barrier 
between the Petitioner and the highly restrictive immigrant classification she seeks, and the Petitioner 
has not submitted sufficient evidence to demonstrate that she has achieved sustained national or 
international acclaim to qualify for the classification. 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration 
and has not overcome the grounds for dismissal of the appeal. We will therefore dismiss the motion 
to reopen and motion to reconsider. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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