dismissed EB-1A Case: Unknown

(b)(6)
DATE: OCT 0 8 2013 Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washin!Jl.on, DC 20529-2090 
U.S. citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:ljwww.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director , Nebraska Service Center, denied the employment-based immigrant 
visa petition on October 2, 2008. The Administrative Appeals Office (AAO) dismissed the 
petitioner 's appeal of that decision on October 21, 2009. The AAO dismissed the petitioner's first 
four motions to reopen and reconsider on April 12, 2011, on July 11, 2012, on December 17, 2012 
and on July 22, 2013. The matter is again before the AAO on a motion to reopen and reconsider. The 
motion to reopen will be dismissed. The motion to reconsider will be dismissed. The previous decision 
of the AAO will be affirmed , and the petition will remain denied. 
Counsel's brief accompanying the present motions is virtually identical to the prior two briefs and 
generally the same as counsel's brief which accompanied the petitioner's first motion, and reiterates 
previous claims regarding the petitioner's eligibility for the exclusive classification. Counsel makes 
no attempt in his current motion to address the AAO's most recent decision, which concluded that 
the filing did not meet the regulatory requirements for a motion to reopen or a motion to reconsider. 
Motion to Reopen 
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.
1 
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. 
Doherty, 502 U.S. 314, 323, (1992) (citing INS v. Abudu, 485 U.S. 94, 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. 
Abudu, 485 at 107. Based on its discretion, "[T]he [USCIS] 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." ld. at 108. The result also 
needlessly wastes the time and efforts of the triers of fact who must attend to the filing requests. !d. 
A party seeking to reopen a proceeding bears a "heavy burden." Jd. at 110. 
A motion to reopen is a fundamentally different motion than a motion to reconsider. !d. at 402 
(citing Sanchez v. INS, 707 F.2d 1523, 1529 (D.C.Cir.1983); Chudshevid v. INS, 641 F.2d 780, 783 
(9th Cir.1981)). It does not contest the correctness of (or simply request a reevaluation of) the prior 
decision on the previous factual record. Rather, a motion to reopen proceedings seeks to reopen 
proceedings so that new evidence can be presented and so that a new decision can be entered , 
1 
The word "new" is defined as "1. having existed or been made for only a short time . .. 3. Just discovered, 
found, or learned <new evidence > " Webster's II New Riverside University Dictionary 792 (1984) 
(Emphasis in original.) 
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(b)(6)
NON-PRECEDENT DECISION 
Page 3 
normally after a further evidentiary hearing. Matter of Cerna, 20 I&N Dec. at 403. "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." (Emphasis added) 8 C.P.R. § 103.5(a)(2). Counsel 
presents the same facts within this motion that he presented in previous proceedings and has 
submitted no new evidence. Furthermore, the present motion must address the basis for the most 
recent AAO decision, that the previous filing did not meet the requirements of a motion. Therefore, 
the petitioner has failed to meet the regulatory requirements for filing a motion to reopen. 
Motion to Reconsider 
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 
USCIS policy. 8 C.P.R.§ 103.5(a)(3). The Board of Immigration Appeals (BIA) 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 of Cerna, 
20 I&N Dec. 399, 402 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised earlier in 
the proceedings. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). Rather, the 
"additional legal arguments" that may be raised in a motion to reconsider should flow from new law 
or a de novo legal determination reached in its decision that could not have been addressed by the 
party. Further, a motion to reconsider is not a process by which a party may submit, in essence, the 
same brief presented on appeal and seek reconsideration by generally alleging error in the prior 
decision. Matter of 0-S-G-, 24 I&N Dec. 56, 58 (BIA 2006). Instead , the moving party must 
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. !d. at 60. 
The AAO concluded in its most recent decision that the filing did not meet the requirements of a 
motion to reopen or reconsider. Counsel has not provided any pertinent precedent decision or other 
legal authority to support a finding that the AAO's determination was in error. Consequently, he has 
failed to meet the regulatory requirements for a motion to reconsider. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, that burden has not been met. 
ORDER: The motion to reopen is dismissed. The motion to reconsider is dismissed. The decision 
of the AAO dated July 22, 2013, is affirmed, and the petition remains denied.