dismissed EB-1A Case: Unknown

(b)(6)
Date: 
SEP 0 5 2014 
INRE: 
APPLICATION: 
Office: VERMONT SERVICE CENTER 
Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office of Administrative Appeals 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. 
§ 1153(b )(1 )(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://www.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, Vermont Service Center, denied the employment-based immigrant visa 
petition on September 26, 2005. On November 16, 2005, the petitioner filed an appeal. On January 10, 
2006, the director rejected the appeal as untimely, accepted the filing as a motion to reopen and 
reconsider, and affirmed his previous denial of the petition. The petitioner appealed that decision on 
February 7, 2006. On March 7, 2007, the Administrative Appeals Office (AAO) issued a notice 
advising the petitioner of derogatory information and our intent to make a finding of misrepresentation. 
On May 4, 2007, we affirmed the director's adverse decision on the petition and issued a formal finding 
of misrepresentation, finding unconvincing the petitioner's assertion that she was unaware of the 
submission of false documents. Approximately four years later, in 2011, the petitioner filed her first 
motion to reopen and reconsider. On December 5, 2012, we dismissed the motion for multiple reasons, 
including that it was untimely. The petitioner now files a second motion to reopen and reconsider. Our 
previous decisions will be affirmed, and the petition will remain denied. 
Regarding motions to reopen or reconsider, 8 C.F.R. § 103.5(a)(l)(ii) states in relevant part: "The 
official having 
jurisdiction is the official who made the latest decision in the proceeding unless the 
affected party moves to a new jurisdiction." The latest decision was the December 5, 2012 decision 
dismissing the motion. Therefore, a review of any claims or assertions that the petitioner's instant 
motion raises is limited in scope and is restricted to that decision. 
To the extent that the petitioner intends the current motion to be 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." Abudu, 485 U.S. at 110. 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). 
Along with the instant motion, the petitioner has submitted supporting evidence, some of which she 
had previously submitted, to demonstrate that she lacked knowledge about the misrepresentation 
relating to her Form I -140 petition and to demonstrate that she was represented by attorney 
r individuals associated with who she claims had submitted the 
fraudulent documents. The petitioner submits the following evidence: 
1. The petitioner's affidavit; 
2. The petitioner's spouse's affidavit; 
3. A business card fo indicating an affiliation with the ---------' 
4. A copy of the petitioner's spouse's June 2006 Form I-140 petition, listing 
as the preparer and bearing his signature; 
5. A copy of the petitioner's spouse's June 2006 Form I-485 application, listing 
as the preparer and bearing his signature; 
6. An August 30, 2003 Retainer Agreement between the petitioner ' s spouse and 
including an ' stamp; 
7. An incomplete faxed photocopy ot a Form I-290B that purportedly constituted the 
petitioner 's appeal of the director's January 10, 2006 adverse decision; 
(b)(6)
Page 3 
NON-PRECEDENT DECISION 
8. A copy of a December 2006 filing receipt for the petitioner ' s Form r-765 application 
addressed to 
9. An October 14, 2005 letter from the U.S. Department of Labor (DOL) relating to an 
Application for Permanent Employment Certification (Eorm ETA 9089) filed on behalf 
of the petitioner that was addressed to 
10. An August 13, 2010 letter from the Departmental Disciplinary Committee of the New 
York Sumeme Court. relating to the petitioner's ineffective assistance of counsel claim 
against and 
11. Various articles and court documents relating to criminal investigations and charges 
against and individuals associated with his law offices, including 
Item 3 from the above list, a photocopy of a business card is not new evidence. The petitioner's prior 
motion included the photocopy, and it was fully considered in our December 5, 2012 decision. 
Significantly, item 3 does not establish that or any of his associates represented the 
petitioner for purposes of her Form r-140 petition because any person without an agreement with 
may be in possession of the business card. 
Similarly, we have previous! considered item 6 in these proceedings. Again, the retainer agreement 
establishes that had agreed to represent the petitioner's spouse through the labor 
ce~rlification nrocess. but does not in an way indicate that the petitioner had a legal agreement with 
Therefore, items 3 and 6 are not new evidence and provide no 
new facts. 
The petitioner for the first time in these proceedings submits item 7, which she asserts is a faxed 
photocopy of the Form r-290B that constituted her appeal of the director's January 10, 2006 
decision. The petitioner asserts that this document establishes that prepared her 
Form r-140 petition and represented her on 
matters related to the Form r-140 petition before the U.S. 
Citizenship and Immigration Services (USCrS). The petitioner states that the legend stamped on the 
bottom of the document shows that the form was prepared by The legend at the 
bottom of the document includes the fax date February 4, 2006 and the text "FROM : 
.. TO: EARL EFAX P.3/3." In her affidavit accompanying the motion (item 
1), the petitioner states that the document does not bear her signature and specifically requests us to 
compare the signature on that document with previous and current affidavits or other immigration 
forms. However, there is nothing on the faxed photocopy of the Form I-290B to indicate that the the 
petitioner or anyone else submitted this form to USCIS or that USCIS accepted this document as an 
effective appeal of the January 10, 2006 decision. 
In contrast, the record includes the original Form I-290B filing, which the petitioner signed and 
submitted to USCrS via express mail, not fax. The document is an original document , not a 
photocopy, which bears no resemblance to item 7. The original document bears no legend at the 
bottom of the page and the Center Director of the Vermont Service Center stamped it as being 
received on February 6, 2007. As such, the stamped document is the Form I-290B that USCIS 
accepted as a properly filed appeal of the January 10, 2006 decision . The original document filed 
with users is a different document from the faxed photocopy (item 7) that the petitioner now 
---------------------------------~- ------·· -·-· -·.,··- .. . ~ ... 
(b)(6)
NON-PRECEDENT DECISION 
Page 4 
submits and asserts is the Form I-290B that constituted the appeal. The properly filed Form I-290B 
does not include the name of any representing attorney. Rather, it bears the original signature of the 
petitioner, which is consistent in appearance with every other affidavit and immigration form that the 
petitioner has submitted to USCIS. Therefore , item 7 lacks probative value and is not objective , 
credible evidence showing that or individuals associated with him, represented 
the petitioner on matters relating to her Form I-140 petition. 
The petitioner claims in her affidavit that and individuals associated with him, 
including went to great lengths to ensure that they created no record of their 
representation. The petitioner and her husband have attested that and individuals 
associated with him assisted in preparing Form I-140 petitions, work authorization applications, and 
Form I-485 applications for both of them. The evidence indicates that 
issued a retainer agreement to the petitioner's spouse on August 30, 2003 (item 6). The petitioner 's 
spouse's Form I-140 petition (item 4) and Form I-485 application (item 5) bear 
signature. The receipt from USCIS for the petitioner's Form I-765 application (item 8) is addressed 
to as does the letter from the DOL discussing the petitioner's labor certification (item 
9), indicating that entered his representation before each agency for purposes of 
the Form I-765 application and the labor certification. In short, the record includes credible, 
independent evidence showing that entered his representation for every 
application that the petitioner asserts he prepared for her or her husband -with the exception of the 
oetitioner's Form I-140 petition. The record of evidence, on the whole, does not indic ate that 
was reluctant to enter his representation before USCIS. Furthermore , there is nothing 
in the numerous articles or court documents relating to the conduct of showing 
that he had a pattern or practice of intentionally declining to enter his representation before USCIS. 
In short, the petitioner has not established with objective, credible evidence that an attorney prepared 
her Form I-140 petition or represented her in any matter related to the petition, including the appeal. 
Regarding the petitioner's claim that she had no knowledge of the misrepresentation in connection to 
her Form I-140 petition, as we noted in our May 4, 2007 and December 5, 2012 decisions, the 
petitioner, by signing her petition, certified under penalty of perjury that the petition and the 
evidence submitted with it are all true and correct. See section 287(b) of the Act, 8 U.S.C. 
§ 1357(b ); see also 28 U.S.C. § 1746 and 18 U.S.C. § 1621. As noted in our December 5, 2012 
decision, the envelopes for prior submissions bear her return address. In response, the petitioner 
asserts that whom she claims to be associated with (item 3), 
provided her sealed envelopes with her address as the return address to submit to USCIS. First, as 
discussed, the petitioner has not submitted any evidence that an attorney represented her with her 
Form I-140 petition in addition to her husband's separate petition. Regardless, the petitioner ' s 
failure to apprise herself of what was submitted in support of her own petition constitutes deliberate 
avoidance and does not absolve her of responsibility for the content of her petition or the materials 
submitted in support of her petition. See Hanna v. Gonzales, 128 F. App'x 478, 480 (6th Cir. 2005) 
(finding that an applicant who signed his application for adjustment of status but who disavowed 
knowledge of the actual contents of the application because a friend filled out the application on his 
behalf was still charged with knowledge of the application's contents). Cf, Business Guides, Inc. v. 
Chromatic Communications Enterprises, Inc., 498 U.S. 533 (1991) (finding that a represented party 
who signs his or her name to documents filed in court bears personal, non-delegable responsibility to 
(b)(6)
NON-PRECEDENT DECISION 
Page 5 
certify truth and reasonableness of the documents and failure to meet that duty subject signor to Rule 
11 sanctions). The law generally does not recognize deliberate avoidance as a defense to 
misrepresentation. See Bautista v. Star Cruises, 396 F.3d 1289, 1301 (111h Cir. 2005); United States 
v. Puente, 982 F.2d 156, 159 (51h Cir. 1993). 
To the extent the petitioner intends the current motion to be a motion to reconsider, motions for 
reconsideration must state the reasons for reconsideration and be supported by any pertinent 
precedent decisions to establish that the original decision was based on an incorrect application of 
law or USCIS policy. 8 C.F.R. § 103.5(a)(3). In essence, 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 evidence. Compare 8 C.F.R. § 103.5(a)(3) and 
8 C.F.R. § 103.5(a)(2). As an initial matter, the petitioner includes assertions relating to claims of 
ineffective assistance of counsel. Specifically, in the brief supporting the motion, the petitioner 
asserts that our December 5, 2012, decision erroneously determined that the petitioner failed to 
satisfy the requirements under Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). Our December 5, 
2012 decision, however, specified that our May 4, 2007 decision determined that the petitioner failed 
to satisfy the requirements of Lozada and that the petitioner's first motion filed in 2011 did not 
challenge findings from our May 4, 2007 decision. Any challenges to our findings relating to the 
petitioner's Lozada claim should have been included in the petitioner's first motion. As the 
petitioner's first motion before us did not challenge our prior findings regarding the requirements for 
an ineffective assistance of counsel claim and in light of 8 C.F.R. § 103.5(a)(1)(ii), any arguments 
relating to ineffective assistance of counsel based on Matter of Lozada is not properly before us in 
the current motion. Moreover, the petitioner has not established that an attorney prepared her Form 
I-140 petition or otherwise represented her in connection with the petition. As discussed, the 
retainer agreement is between ' and her husband and while 
signed some documents as the preparer, neither Jed David Philwin nor anyone associated with him 
signed the petitioner ' s Form 1-140 petition or the Form I-290B filed on February 7, 2006. 
Accordingly, the petitioner may not rely on an ineffective assistance of counsel claim that is based 
upon the preparation and representation of her Form 1-140 petition, which lists no preparer and she 
alone signed~ 
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 Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden 
has not been met. Accordingly, the motion will be dismissed. 
ORDER: The motion is dismissed, the AAO ' s December 5, 2012 decision is affirmed , and the 
petition remains denied.