dismissed EB-1A Case: Unknown

(b)(6)
DATE: MAR 0 8 2013 
INRE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
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 
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 advise'd 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 fo.und at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) req!Jires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
r;?~15r-~ 
·. ~-
Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
· www.uscis.g9v 
(b)(6)
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
.. petition on January 19, 2012. The Administrative Appeals Office (AAO) dismissed the petitioner's 
appeal of that decision on November 3, 2012, with a full discussion of the claimed criteria. 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 
thiit "[a] motion that does not meet applicable requirements shall be dismissed. In this case, the 
petitioner failed to submit a statemen.t 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). 
In this instance, the petitioner presents the basis of his motion within Part 3 of the Form I-290B. 
However, the petitioner does not address the AAO's most recently issued decision. Rather, the 
petitioner focuses on the issues contained in the service center director's original decision, asserting that 
the "service center erred" and that the "service center committed reversible error." As an example of 
this error, .the petitioner asserts that "preexisting, independent and objective evidence" is not a lawful 
requirement. That quote, however, appears in the director's decision, not the AAO's decision. In fact, 
Part 3 of the motion Form I-290B repeats word for word the assertions on the Form I-290B of the 
petitioner's appeal. 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). The moving party must specify the 
factual and legal issues raised on appeal that the AAO decided in error or overlooked in the· appellate 
decision or must show how a change in law materially affects the appellate decision. !d. 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 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 (1988)). A party 
seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the 
current motion, the petitioner has not met that burden. 
1 The word "new" is defined as "1. having existed or bee:n 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)
Page 3 
In support of the motion to reopen, the petitioner submits . the same personal statement that he 
previously submitted in response to the director's request for evidence. This statemen~ is not "new" 
evidence. Similarly, the petitioner submits other previously submitted evidence that is not "new." 
In addition, the petitioner submits a Certificate of Recognition relating , to a July 2011 event. Not 
only does this certificate predate the petitioner 's February 22, 2012 appeal such that it is not "new," 
it also relates to an achievement after the petition's date of filing. A petitioner must 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). Further, the petitioner submitted an October 5, 2011 letter from 
As this letter 
predates the appeal, the petitioner does not explain why this letter is "new" evidence. The petitioner 
also submits a March 16, 2012letter from _ , but does explain why he was previously 
unable to obtain a letter ·from 
this individual. Finally, the petitioner submits a November 20, 2012 
letter from ~-r- .~ _ ----r- -, ___ __ ----- - --- - ---.~ • , , 
This letter, however, is identical to a letter from . dated March 18, 2012 that the petitioner 
submitted previously. Thus, this letter is not "new" evidence. In light of the above, the petitioner's 
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 November 3, 2012, is affirmed, and the petition remains denied.