dismissed EB-1A Case: Unknown

DI\TE DEC 0 5 2012 
IN RE: PclitiOl1lT: 
Beneficiary: 
OIliee: VERMONT SERVICE CENTER 
U.S. Dcpal"tmcnt of Homcl:md Sccuritj' 
U.". ('ili7eflSllir ancllmrnigr:llion S\:'-vices 
ALilllinislr;lli\'c Appeals ()t'fin.: (1\1\0) 
2iJ Massachusells I\Vl'., N.W., MS 209() 
\\iashingl()fl, DC 20529-2(JlJU 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien or Extraordinary Ahilily Pursuant 10 Sc(:tion 
203(h)( 1)(1\) 01 the Immigration and Nationality I\ct. K USc. * 1153(h)II)(I\) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please rind the deci~i()n of the Administrative Appeals OHice in your case. All of the documents 
related to Ihis matler ha\'C heen returlH:d to the office lhat originally decidcLl j:our casco Pic(t:-,c 11L~ advi:-.nlthal 
any furlhcr inljuir): that you might have concerning your case mllst be made 10 lhat oilice. 
If YllU believe the AAO inappropriately applied the law in reaching it...; del:islon, or ynu have additional 
information thai you wi~h 10 !lave cOllsidered, you may file a motion t() rCClHl."jLicr ()r a motioll In reopen in 
accllrdance with lhe instructions on Form 1-29013, Notice of Appeal or Motioll, with a fel..· of S6JO. The 
specific rcquiremenls for filing such a mOlion can be found at K C.F.R. * l(U.S. Do not file any motion 
directly with the AAO. Plca,e he aware that X c:.F.R. § Im.5(a)(1)(i) require; ''''y motion ttl he liled within 
:10 days of the decision that the mol ion secks to reconsider or rcopen. 
Thank yuu, 
Ron Rosenberg 
Acting Chid, Administrative Appeals Ollice 
" ww.usds.gcn 
Page 2 
DISCUSSION: The Director. Vermont Service Center. denied the employment· based immigrant visa 
petition on September 26, 2005. On appeal, the Administrative Appeals Otlice (AAO) issued a notice 
advising the petitioner of derogatory information on March 7. 2007, providing the petitioner fifteen 
days to respond to the derogatory evidence that the AAO intended to use to make a finding of 
misrepresentation. On May 4, 2007, the AAO at1i1111ed the director's adverse decision on the petition 
and issued a formal finding of misrepresentation. The petitioner's current counsel moves to reopen 
proceedings. In the brief supporting the motion to reopen, counsel asserts that independent and 
objective evidence is nm\ available that shows the Ai\(Ys previous finding of fraud was erroneous. 
The motion will be dismissed. The previous decision of the AAO will be affirmed, and the petition will 
remain tknied. 
Regarding motions to reopen or reconsider. 8 c.r.R. ~ 103.5(a)( I )(ii) states in rekl'ant part: 'Thc 
official having jurisdiction is the official who made the latest decision in the proceeding unless the 
affected party moves to a new jurisdiction." The latest decision was the AA(Ys May 4, 2007 decision 
dismissing the appeal. Therefore, a review of any claims or assertions that the petitioner's motion raises 
is limited in scope and is restricted to the AA(),s prior decision. In addition. to properly file a motion, 
the regulation at 8 ere.R. ~ I 03.S(a)( I )(iii) requires that the motion must be '"Ia]ccompanied hy 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 couli. nature. date. and status or result of the proceeding:' 
Furthermore, the regulation at ~ eF.R. ~ IOJ.S(a)(4) requires that "laJ motion that docs nl1t meet 
applicable requirements shall be dismissed. In this case, the petitioner failed to submit a statement 
regarding whether the validity 01' the AAC), s decision has been, or is. subject of any judicial proceeding. 
The regulation mandates that this shortcoming alone requires U.S. Citizenship and Immigration 
Services (USCIS) to dismiss the motion. See ~ C.F.R. § 103.5(a)(4). 
Notwithstanding the fatal defect noted ahovc, thc AAO will consider the current motion to reopen. As 
an initial matter. tile current motion to reopen is untimely. 8 C.F.R. ~ 103.5(a)(I)(i) provides that: '"Any 
motion to reopen a proceeding before the Service filed by an applicant or petitioner, must be filed 
within ]() days of the decision that the motion seeks to rcopen, except th;,t failure to file before this 
period expires, may be excused in the discretion of the Service where it is demonstrated that the delay 
was reasonable and was beyond the control of the applicant or petitioner." The A;l.O·, rnost recent 
decision was issued on May 4, 2007. The petitioner filed the current motion on Septemher 13. :'011, 
over four years after the issuance of the last AAO decision. Petitioner's current counsel as"l'rts in the 
brief in support of the motion that the motion is untimely because the delay was necessary to secure the 
evidence that resulted /i'om criminal prosecution of the petitioner's tanner attorneys. Along with the 
motion. the petitioner submitted the following documents: 
I. An /\pril I (). 21107 ktter from indicating til;1I he rc'llfesents the 
petitioner's 
2. Evidence 0 ca agreement entered on .Iune 8, 2007: 
3. Copies of a, es a U.S. Immigration and Customs Enforcement 
Officer and current counsel from August, 2009 to January, 201ll; 
4. Letters from the Departmental Disciplinary Committee of the New York Supreme 
Court, dated May 19,2010. and August 12, 20](), respectively: 
not sufficiently establish that the petitIOner was actually 
committed ti-aud without her knowledge. The "Retainer UQree:m,"nt 
record. dated August 30, 2003. rctlects that the client . 
_etter dated April 10. 1()07 states that: .. [tJhis 
immigration matters in the United States." Furthenmore, in 
the Disciplinary Committee, he disavows ever having represented or assisted the petitioner with her 
Form 1-140 petition. Consequently. the petitioner has failed to establish that she was ever rer>re,;entea 
or assisted in her Form 1-140 petition and related matters by either 
_ the two attorneys that the petitioner alleges committed the rei to 
While the petitioner references a February 7. 2007 "notice of intent to deny" listing Mr. 
attorney in her response to Mr._May 3. 2010 letter. the AAO issued its noti 
dismiss the appeal an March 7, 2007 and did not list Mr_s her attorney. 
The May 4. 2007 AAO decision alsll determined that the petitioner signed her Form 1-140, thereby 
certifying under penalty of perjury that the petition and the evidence submitted with it are all true ami 
correct. S(>c section 2S7(11) uf the Act. S U.S.c. !i 1357(11): see also. 21< U.s.c. § 17411 and IS U.s.c. 
~ Ih2i. Furthermore, the AAO continues to find it significant that the previous submi:;sions to USClS 
relating to her visa petition were sent in envelopes which reflected the petitioner's home address in 
Staten Island. While the petitiuner maintains that she was unaware of the contents of the envelopes and 
she only followed the instructions of her attorneys, the petitioner cannot be absolved of her 
responsibility to provide information and evidence that arc true and correct, which she attested to under 
penalty of perjury. None of the evidence that the petitioner now submits is probative or otherwise has 
any bearing on this critical basis of the AAO's prior finding orti-aud. 
To the extent that the petitioner is making a claim of ineffective assistance of counsel along with her 
motion. the prior AAO decision stated the requirements for making such a claim pursuant t.o Maller of 
rozw(a. llJ I&N Dec. 637 (BiA IlJ88). utfd, 857 F.2d 10 (1" Cir. llJ88), and determined that the 
petitiuner failed to satisfy those requirements. Significantly, in the current motion, the petitioner does 
not challenge our previous determination of her failure to meet the Lozada requirements precludes a 
tinding of incttceti\'e of assistance of counsel. nor docs the petitioner assert that the AAC),s previous 
reliance upon that precedent decision was erroneous. Therefore, the AAO concludes that any claim of 
ineffective assistance of counsel was fully considered. 
Finally. the May 7. 1007 ;\/\0 decision. after making a fraud tincling. Itdl\' Cl'J1"idcred the pe!itioner's 
appeal on the merits and concluded that the petitioner failed to estahlish her eligibility as an "alien with 
extraordinary ability" Linder 203(h) orthe Immigration and Nationality Act, S U.s.c. ~ 1153(b)(I)(A), 
and the implementing regulations. The current motion contains no evidence relating to the merils of the 
petitiuner's underlying visa petition and the petitioner does not challenge the AAO's decision in this 
regard. Consequently, the AAO considers abandoned any claims rclated to the merits of the petitioner's 
underling visa petition. Sel'lI/tn/a l'. u.s. Atl'y Gen., 401 F.3d 1226, 122K 11. 2 (11th eir. 
20(5): Hristov I'. Roark, No. 04-CV-27312011, 2011 WL 47118S5 at "1, lJ (E.D.N.Y. Sept. 30, 
2(11) (the eOllrt ll)lInd the plaintifl's claims to be abandoned as he failed 10 raisc them on appeal to 
the AAO). 
Pagt.: 5 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, 8lJ,S,C, ~ 13fd. Here. the petitioner has not sustained that burden. Accordingly. the motion will 
be dismissed. 
ORDER: The motion is dismissed. the i\i\(Y s March 4. 2007 liccisinll IS affirmed, and the 
petitioll remains denied.