dismissed EB-1A Case: Unknown

(b)(6)
DATE: OCT 0 7 2013 Office: NEBRASKA SERVICE CENTER 
INRE : Petitioner : 
Beneficiary: 
U.S. Department of Hom eland Securit y 
U.S. Citi zenship and Immi grat ion Service ~ 
Administr ative Appeals Offi ce (AA O) 
20 Massachusetts Ave., N.W ., MS 2090 
Washin gton, DC 20529-20 90 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an AJien of Extr ao rdinary Ability Pursuan t to Section 
203(b)(l)(A) of the Immigrati on and Nation ality Act , 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Encl ose d please find the decisi o n of the Administrative Appeals Office (AAO) in your case. 
This is a non-prec ede nt deci sion. The AAO does not announc e new constructions of law nor establish age ncy 
policy through non-precedent decisions. If you believe the AAO incorr ectly applied curre nt law or policy to 
your case or if you seek to present new facts for consideration, you may file a m otion to recon sider or a 
motion to reopen , respectively. Any motion must be filed on a Notice of Appeal or Motion (Form 1-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http:Uwww .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, 
~J~ 
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 December 14, 2010. The Administrative Appeals Office (AAO) summarily 
dismissed the appeal of that decision on April 20, 2012. The AAO also dismissed the petitioner's 
motion to reopen and motion to reconsider on December 17, 2012. The matter is again before the 
AAO on a motion to reopen and a motion to reconsider. The motions will be dismissed. The previous 
decision of the AAO will be affirmed, and the petition will remain denied. 
The AAO's most recent decision concluded that the motion to reopen and the motion to reconsider 
were not properly filed because they were not filed by an affected party and lacked the statement 
required by regulation at 8 C.F.R. § 103.5(a)(1)(iii) regarding "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." In addition, the AAO found that the filing did 
not meet the regulatory requirements for a motion to reopen or a motion to reconsider and did not 
meet the requirements for articulating a claim of ineffective assistance of counsel under Matter of 
Lozada, 19 I&N Dec. 637 (BIA 1988), including the required submission of a statement as to whether 
the alien has filed a complaint with the disciplinary authority regarding counsel's conduct or, if a 
complaint was not filed, an explanation for not doing so. 
The present motion must address all the elements contained in the most recent AAO decision and the 
petitioner only addresses the affected party issue. Specifically, the petitioner states in Part 3 of Form 
I-290B, Notice of Appeal or Motion: 
I submit this request to appeal the decision. The reason for my appeal is that my 
employer, Mr. made a mistake when completing the Form G-28 
'Information about Attorney o[r] Accredited Representative.' This harmless error 
should not prevent this appeal from moving forward. 
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. § 1 03.5(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 
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.) 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
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." !d. 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." !d. at 110. With the current 
motion, the petitioner, who did not submit any new 
evidence, has not met that burden. 
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 petitioner has not 
provided any pertinent precedent decision or other legal authority to support a 
finding that the AAO's most recent 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 December 27, 2012, is affirmed, and the petition remains denied.