dismissed EB-1A Case: Unknown

DATE: DEC 0 4 2012 Ollice: TEXAS SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
U .. ~. D(~partlllcnl of Homeland Security 
tiS. ('jltlt:I1Ship and Imllligr,llion S(:r\'icl'~ 
Adnlllli"lrall\'l I\rrK;iI~ Oll-iet (A/\O) 
]\l ~l:I~~;lChlJ"l'l'~ 1\\1.: .. N W" iV1S 2()t)(l 
Washinglon, U(' 20:'i29-2U\)(j 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ahility Pur~lIant to Section 
2U3(h)( I)(A) 01 the Immigration and Nationality Act. S USC. ~ 1153(11)( I)(A) 
ON 13EHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Oflice in your case. All 01 the documents 
related to this maller have hecn returned to the office that originally decided your case. Please he advised that 
any further inquiry that you might have concerning your case must he made to til;l! office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or ynu have additional 
information that you wish to havl: considered, you may file a motion to reconsider or a molillJ1 10 reopen in 
accordance with the instructions on Form 1-29013, Notice of Appeal or Motion, with a fee of $fi30. The 
specilic requirements lor filing such a motion can be found at 8 C.F.R. ~ Im.5. Do not file any motion 
directly with the AAO. Please he aware that 8 C.F.R. § 103.S(a)(l)(i) requires any motion to he riled within 
30 days of the decision that the motion seek.s to reconsider or reopen. 
Thank you, 
Ron Rosenherg 
Acting Chief, Administrative Appeals Olrice 
",ww.uscis.goy 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on November 4, 2008, The Administrative Appeals Office (AAO) dismissed the appeal on 
September 21, 200'!, The petitioner filed a motion to reconsider the AAO appellate dismi,sal, which 
the AAO dismissed on April 14,2011, she then filed a motion to reopen and reconsider the previous 
motion, which the AAO dismissed on July 30, 201L The matter is now before the AAO on a third 
motion, which is a motion to reconsideL The present motion to reconsider will be dismissed. 
The petitioner has been notified within two AAO decisions that any motion must he: "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," 8 C.F.R. § 103.5(a)(I), Yet, even within this third motion, the petitioner failed to 
include such a statement. Therefore, the regulation at 8 C.F,R, ~ 103,5(a)(4) requires that "[a] 
motion that docs not meet applicable requirements shall be dismissed. As such, the motion must be 
dismissed pursuant to the regulation at S C.F,R, !i 103.5(a)(4) without regard to the claims contained 
within the motion. 
Notwithstanding the above, motions for the reconsidering 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, Dohat\', 502 U.S, 314, 323, (1992) (citing INS v, Ah/ld/l, 485LJ.S, 94, lOt; 
(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 \" Ah/ld/l, 4t-i5 at 107. Based on its discretion, "IT]he [liSCIS I has some latitude in 
deciding when to reopen a case, I USCIS J should have the right to he reslrictive, Granting such motions 
too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously 
produce new and material filcts suflieient to establish a prima facie case," Id, al 108, The result also 
needlessly wastes the time and efforts of the triers of fact who musl attend to the filing requests, Id. A 
party seeking to reopen a proceeding bears a "heavy burden," Id. at 110. With the current motion, ihe 
petitioner has not met that burden. 
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 (USClS) policy, 8 C.F.R. § 103.5(a)(3), The Board of Immigralion 
Appeals (BlA) generally provides that a motion to reconsider asserts that at the time of the previous 
decision, an error was made, It questions the decision for alleged errors in appraising the facts and the 
law, The very nature of a motion to reconsider is that the original decision was defective in some 
regard. See Matter oj'Cerna, 20 I&N Dec, 39'!, 402 (BIA 1991). A motion to rccon;;ider is based on 
the existing record and petitioners may not introduce new facts or new evidence relative to their 
arguments. 
Additionally, a motion to reconsider cannot be used to raise a legal argument that could have been 
raised earlier in the proceedings, See Matter oj'Medrallo, 20 I&N Dec, 216,220 (BIA I,!,!(J, 1,!91). 
Rather, the '"additional legal arguments" that may be raised in a motion to reconsider should flow hom 
Page J 
new law or a de IIOVO legal determination reached in its decision that could not havc been addressed by 
the party. Further, a motion to reconsider is not a process by which a party may submil. in essence, the 
same brief presented on appeal and seek reconsideration by generally alleging error in the prior 
decision. Matter ofO-S-G-, 24 I&N Dec. 56, 58 (BrA 2(06). Instead, the mlwing part) illust specify 
the factual and legal issues raised on appeal that were decided in error or overlooked in the initial 
decision or must show how a change in law materially affects the prior decision. 1£1. at 60. 
The present motion is limited to addressing the reasons that the AAO cited in its Intest decision dated 
July 30, 2012. The AAO's tindings within the July 30. 2012. decision related to the following 
Issues: 
I. The petitioner failed to submit any evidence with her motion filed on May 16. 201 J that 
would qualify as "new" under 8 C.F.R. ~ 103.5(a)(2) in that it was previously unavailable but 
related to achievements that predated the filing of the petition. 
2. The petitioner also relied upon evidence that postdated the petition filing date. A petitioner 
must establish the dements for the approval of the petition at the time of filing. 8 CF.R. 
§§ IOJ.2(b)(I). (12). A petition may not be approved if the petitioner was not qualified at the 
priority date. but expects to become eligible at a subsequent time. See Malter of Katigbak, 
14 I&N Dec. 45. 49 (Reg'l Comm'r 1971). 
3. The petitioner requested additional time to submit a brief to accompany her motion filed on 
May 16,201 L Although the regulation at 8 CF.R. § 103.5(a)(I)(iii) allows for the motion to 
be accompanied by a brief. the regulations do not allow additioml time to submit a brief or 
additional evidence after the filing of a motion. Compare 8 CF.R. § lOJ.3(a)(2)(vii), which 
allows the AAO to grant additional time to submit a brief after the filing of an appeal. Page 2 
of the Form I-290B instructions clearly explains that "[a[ny additional evidence must be 
submitted with the motion" and there is no provision lllr an extension. 
The petitioner's present motion to reconsider does not relate to any of the elements enumerated 
above tfom the AAO's July 30. 2012. decision. Instead. she elected to place focus back on the 
merits of her cligibility claims as discussed in the director's initial denial. the AAC),s decision 
dismissing the appeal and the AAC),s decision on the initial motion. As the petitioner has not 
alleged a legal error on the AAO's most recent decision. whieh concluded the liling did not qualify 
as a motion. she has not filed a proper motion to reconsider. 
Additionally. the petitioner failed to support her motion with any pertinent precedent decisions to 
establish that the AAO's most recent decision was based on an incorrect application of law or 
USCIS policy in accordance with il CF.R. § 103.5(a)(3). She therefore. failed to meet the regulatory 
requirements for filing a motion to reconsider. 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of 
the Act, 8 U.S.c. § 1361; Matter of Soriano, 19 I&N Dec. 764. 766 (BlA 19N5) (citing Mllfler of 
Bralltig(lll, 11 I&N Dec. 493 (BIA 19(6)). Here, the petitioner has not sustained that burden. 
ORDER: The motion to reconsider is dismissed. The decision of the AAO dated July 30, 2012, is 
affirmed, and the petition remains denied.