dismissed EB-1A Case: Unknown

(b)(6)
DATE: JUN 1 0 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 
Washington, 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 in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
If you believe the AAO inappropriately applied the law in reaching its decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.P.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.P.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~( :!£__ 
p-
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition on September 6, 2011. The Administrative Appeals Office (AAO) dismissed the 
petitioner's appeal of that decision on October 19, 2012. The matter is now before the AAO on a 
motion to reopen and reconsider. The motion to reopen will be dismissed. The motion to reconsider 
will be dismissed. Ultimately, the previous decision of the AAO will be affirmed, and the petition will 
remain denied. 
In order to properly file a motion, the regulation at 8 C.F.R. § 103.5(a)(1)(iii) requires that the 
motion must be "[a]ccompanied 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." Furthermore, the regulation at 8 C.F.R. § 103.5(a)(4) requires 
that "[a] motion that does not meet applicable requirements shall be dismissed. In this case, the 
petitioner failed to submit a statement regarding if the validity of the decision of the AAO has been 
or is subject of any judicial proceeding. As such, the motions must be dismissed pursuant to the 
regulation at 8 C.F.R. § 103.5(a)(4). 
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 (USCIS) policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider contests 
the correctness of the original decision based on the previous factual record, as opposed to a motion to 
reopen which seeks a new hearing based on new or previously unavailable evidence. See Matter of 
Cerna, 20 I&N Dec. 399, 402-403 (BIA 1991). 
On motion, the petitioner asserts that the issue is whether he has established eligibility for the 
classification sought. Before reaching the merits, however, the petitioner must overcome the AAO's 
decision that the appellate filing was not substantive. The AAO summarily dismissed the petitioner's 
appeal based on his failure to identifY a specific error in law or error in fact attributable to the director's 
decision. The petitioner's appellate brief was essentially identical to the RFE response, which is not a 
substantive appeal. In addition, the petitioner submitted no additional evidence. On motion, the 
petitioner asserts: "The AAO dismissed my appeal inappropriately applying the law and without 
looking on [sic] my submitted evidence." 
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. While the petitioner asserts that the 
AAO applied "the law" inappropriately, the petitioner does not cite any legal authority relating to 
(b)(6)
Page 3 
summary dismissals to support his general assertion that the AAO did not appropriately apply "the 
law." Thus, the motion to reconsider must be dismissed. 
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 The new facts relating to a motion to reopen must address the AAO's latest 
decision dismissing the petitioner's appeal for failure to identify an error in law or an error in fact within 
the director's decision. 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/NS v. Abudu, 485 U.S. 94 (1988)). A party 
seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. The petitioner 
has not explained why the evidence he submits on motion, a self-serving curriculum vitae, letters, 
photographs and pamphlets, is "new" such that he has not previously submitted it and it was not 
previously obtainable. Moreover, none of the evidence is relevant to the basis of the AAO's most 
recent decision, that the petitioner failed to file a substantive appeal. Consequently, the motion to 
reopen must be dismissed. 
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 (BIA 1988) (citing Matter of 
Brantigan, 11 I&N Dec. 493 (BIA 1966)). Here, the petitioner has not sustained that burden. 
ORDER: The motion to reopen is dismissed. The motion to reconsider is dismissed. The decision 
of the AAO dated October 19, 2012, is affirmed, and the petition remains denied. 
1 
The word "new" is defmed 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).