dismissed EB-1A Case: Unknown

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PUBLIC COpy 
DATE: Office: TEXAS SERVICE CENTER 
JUN 2 9 2012 
IN RE: Petitioner: 
Beneficiary: 
lJ.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service~ 
Administrative Appenb Office (Ai\(») 
20 Ma~sachusl'lls Avl'., N. Vv',. MS ]Ol)() 
Washington, DC 20529-20lJ() 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ahility Pursuant to Section 
203(h)(I)(A) of the Immigration and Nationality Act, H U.S.C § 1I53(h)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed plcase find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have heen returned to the office that originally decided your casco Please hc advised that 
any further inyuiry that you might have concerning your case must he made to that ollice. 
If you helieve the AAO inappropriately applied the law in reaching its decision. or you have additional 
information thaI you wish to have considered, you may file a motion to reconsider or a motion to rcopen in 
accordance with the instructions on Form 1-290B, Notice of Appeal or Motion, with a fce of $63(). The 
specific reyuirements for filing such a motion can he found at 8 CF.R. § 103.5. ])0 not file any motion 
directly with the AAO. Please he aware that 8 CF.R. § 103.5(a)(1)(i) requires any motion to he filed within 
]() days of the decision that the motion secks to reconsider or reopen. 
Thank you, 
~~ 
Perry Rhew 
ChieL Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on November 3, 2009. The Administrative Appeals Office (AAO) upheld the director's 
decision, and dismissed the appeal on May 24, 2011. The matter is now before the AAO on a motion 
to reopen. The motion will be dismissed. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(1 lei) 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 S C.F.R. § 103.S(b). The date of filing is not the date of submission, but the date of actual 
receipt with the required fee. See S C.F.R. § 103.2(a)(7)(i). 
The record indicates that the AAO issued the decision on May 24, 2011. It is noted that the AAO 
proper! y gave notice to the petitioner that she had 33 days to file the motion. Neither the Act nor the 
pertinent regulations grant the AAO authority to extend this time limit. The petitioner's initial attempt 
to file the motion was rejected as the form was not properly completed. The present motion was not 
received until July n, 2011, or 43 days after the decision was issued. Accordingly, the motion was 
untimely filed. The petitioner has not explained why his failure to complete the Form 1-2908, Notice of 
Appeal or Motion, was beyond his control such that uscrs can exercise discretion to excuse the 
untimely filing. S C.F.R. § 103.5(a)(I)(i). 
Additionally, S C.F.R. § 103.5(a)(I) informs the public of the filing requirements for a motion and 
provides in pertinent part: 
A motion shall be submitted on Form 1-290B 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; 
(8) Accompanied by a nonrefundable fee as set forth in § 103.7; 
(e) Accompanied hv a statement ahollt whether or not the validity of Ih" lln/{Il'orahle 
decision has heen or is the suhject of any judicial proceedin!!, and, if so, the cOllrl, naillre, 
date, and slalllS or result Of the proceedin!!,; 
(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. 
(Emphasis added.) 
In this case, the petitioner failed to submit a statement indicating if the validity of the 1\1\0', 
unfavorable decision has been or is the subject of any judicial proceeding. Furthermore, the 
Page J 
regulation at K 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 K C.F.R. § IOJ.5(a)(4) without regard to the claims contained within the motion. 
Furthermore, 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 available and could not have been discovered 
or presented in the previous proceeding.' New evidence is considered to be material to the present 
case and not previously submitted. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as are 
petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. INS v. 
Doher!\', S02 U.S. 314, 323, (1992) (citing INS v. Abudu, 485 U.S. at 108 (1988». 'There is a strong 
public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the 
adversaries a fair opportunity to develop and present their respective cases." INS v. Ablldu, 485 at 107. 
Based on its discretion, "[T]he INS [USClS] has some latitude in deciding when to reopen a case. 
[USCIS] should have the right to be restrictive. Granting such motions too freely will permit endless 
delay of deportation by aliens creative and fertile enough to continuously produce new and material 
facts sufficient to establish a prima facie case." Id. at 108. The result also needlessly wastes the time 
and efforts of the triers of fact who must attend to the filing requests. Id. A party seeking to reopen a 
proceeding bears a '"heavy burden" Id. at 110. With the current motion, the petitioner has not met that 
burden. 
A motion to reopen is designed to afford the petitioner an opportunity to submit new evidence that 
may not have been available previously. It is not intended to allow the petitioner to improve upon 
the previously deficient evidence that failed to meet the clearly identified regulatory requirements. 
In addition, on motion a petitioner must stilI establish eligibility at the time of filing; a petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
See 8 C.F.R. § 103.2(b)(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). 
Moreover, the AAO cannot "consider facts that come into being only subsequent to the filing of a 
petition" Maller of Izllmmi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998) (citing Matter of 
Bardollille, lK I&N Dec. 114 (BIA 1981». Ultimately, in order to be meritorious in fact, a petition 
must meet the statutory and regulatory re~uirements for approval as of the date it was filed. 
()glllldipe I'. Mllkasey, 541 F.3d 257, 261 (4' Cir. 2008). The petitioner failed to demonstrate that 
the newly submitted evidence on motion was both (1) not available and could not have been 
discovered or presented in the previous proceeding and (2) relates to eligibility as of the date of 
filing, January 6, 2009. Therefore, the new evidence cannot be considered a proper basis for a 
motion to reopen. As a result, this evidence will not be considered. 
I The word "new" is defined as "I. having existed or been made for only a short time ... 3 . .lust discovered, 
found, or learned </lev, evidence> . "Webster's II New Riverside University Dictionary 792 (1 IJX4) 
(Emphasis in original.) 
Page .. 
Pursuant to k C.F.R. ~ 103.5(a)(1), a motion must be accompanied by a statement indicating if the 
validity of the AAO's unfavorable decision has been or is the subject of any judicial proceeding. As the 
petitioner failed to suhmit such a statement accompanying the motion to reopen, the regulations at 
tl C.F.R. ~ 103.5(a)(4) require that the motion be dismissed. Moreover, according to 8 C.F.R. 
~ 103.5(a)(2), a motion to reopen must state the new facts to be provided and be supported by atfidavits 
or other documentary evidence. The petitioner has not filed a proper motion to reopen. The request 
was not accompanied by any evidence that can be considered new evidence under 
k C.F.R. § 103.5(a)(2) that was (1) not available and could not have heen discovered or presented in the 
previous proceeding (2) relates to the petitioner's eligibility as of the date of tiling. A request for 
motion must meet the regulatory requirements of a motion to reopen. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 29 I of 
the Act. tl U .S.c. § 13() I. Here, the petitioner has not sustained that burden. 
ORDER: The motion to reopen is dismissed. The decision of the AAO dated May 24, 2011. IS 
affirmed, and the petition remains denied.