dismissed EB-1A Case: Unknown

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PUBLIC COpy 
DATE: Office: TEXAS SERVICE CENTER 
APR 1 0 2012 
IN RE: 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)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § l1S3(b)(1)(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. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
DISCUSSION: The Director, Texas Service Center, denied the immigrant visa petition. The 
Administrative Appeals Office (AAO) dismissed a subsequent appeal. The matter is now before the 
AAO on a second appeal. The appeal will be rejected. 
The record indicates that the AAO issued the decision on the first appeal on December 2, 2010. 
The petitioner then filed the present appeal on June 21, 2011. 
The petitioner's appeal must be rejected. The AAO does not exercise appellate jurisdiction over its 
own decisions. The AAO exercises appellate jurisdiction over only the matters described at 8 C.F.R. 
§ 103.1(f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 0150.1(effective 
March 1,2003). Accordingly, the appeal is not properly within the AAO's jurisdiction. 
As noted in the AAO's cover letter, the petitioner had the option of filing a motion to reopen or a 
motion to reconsider the AAO's most recent decision within 33 days of service pursuant to 8 C.F.R. 
§ 103.5 but neither the Form I-290B itself nor the petitioner's brief indicated an intent to file a 
motion. 
Therefore, as the appeal was not properly filed, it will be rejected. 8 C.F.R. §103.3(a)(2)(v)(A)(1). 
In the alternative, the filing does not meet the requirements of a motion to reconsider or a motion to 
reopen. 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). 
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 
O-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. Id. at 60. 
The present filing does not allege that the issues, as raised on appeal, involved the application of 
precedent to a novel situation, or that there is a new precedent or a change in law that affects the AAO's 
previous decision. 
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 only new evidence the petitioner submits with the present filing is a letter 
from his employer praising his work for that entity and evidence of an interview that postdates the filing 
of the petition. The petitioner fails to explain why the letter from his employer could not have been 
discovered or presented in the previous proceeding on appeal. Regarding the June 19, 2008 interview, 
the petitioner must demonstrate his eligibility as of the date of filing, July 27, 2007. See 8 C.F.R. 
§§ 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971); see also Matter 
of Izummi, 22 I&N Dec. 169, 176 (Assoc. Comm'r 1998) citing Matter of Bardouille, 18 I&N Dec. 
114 (BIA 1981) (USCIS cannot "consider facts that come into being only subsequent to the filing of 
a petition.") A review of the evidence that the petitioner submits with the present motion reveals no 
fact that could be considered "new" under 8 C.F.R. § 103.5(a)(2) or that relates to eligibility as of the 
date of filing and, therefore, cannot be considered a proper basis for a motion to reopen. 
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 filing, 
the petitioner has not met that burden. 
Here, even if the AAO considered the appeal to be a motion, it did not meet the requirements of a 
motion to reopen or a motion to reconsider. 
ORDER: The appeal is rejected. 
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).