dismissed EB-1A Case: Unknown

DATE DEC 0 5 2012 Olliee: VERMONT SERVICE CENTER 
IN RE: Petitioner: 
Beneficiary: 
ll.S. Dl'partmcnt or Homciand Security 
U.S. ('ili/enship and !mmi.!,,,r<llion Sevices 
ALiministl;tlin: /\pp\.'als ()ffice (i\;\()) 
2(1 Massachusetts Ave., N.W., MS 20l)() 
\\ia,>hinglnn, DC 1())29-~()90 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ahility Pursuant to Section 
2U3(h)( 1)(1\) or the Immigration anu Nationality AeL H U.s.C ~ 1153(h)(I)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the deci.\ion or the Administrative Appeals Officc in your case. /\.11 of the documents 
related to this matter have heen feturned to the oiTice that originally decided yuur casco Please Ill: ,HJviscd thai 
any further inquiry that you might have cllllcerning your case mllst be maLic to that office. 
If you helieve the AAO inappropriatel).' applied the law in reaching ih deciSion, or you have additional 
information that yuu wish III have considered, you may file a motion I() rccoll~ider ()r a motion tn reopen in 
accnrdanct.: with the instructions Oil Form 1-29013, Notice of Appeal Of Motion, with a rCL~ or S630. The 
specific requirements for filing such a motion can he found at H C.F.R. § 10J.5. Do not file any motion 
directly with the AAO. Please he aware that R C.F.R. § 103.5(a)( l)(i) requires any motiun l() he filed within 
]() days of the decision that the motion "ecks to reconsiLier or reopen. 
Thank you. 
Ron Rosenherg 
Acting Chid. Auministrative Appeals Olriee 
www.uscis.gov 
P~lgc 2 
DISClJSSION: The Director, Vermont Service Center, denied the empl()yment~based immigrant visa 
petition on September 26, 200S. On appeal, the Administrative Appeals Office (AAO) issued a notice 
advising the petitioner of derogatory information on March 7, 2007, providing the petitioner fifteen 
days to respond to the derogatory evidence that the AAO intended to usc to make a finding of 
misrepresentation. On May 4,2007. the AAO affirmed the direetor's adverse deci,ion on the petition 
and issued a formal finding of misrepresentation. The petitioner's cunent counsel moves to reopen 
proceedings. [n the brief supporting the motion to reopen. counsel asserls thai independenl and 
obiective c\'idence is now a\'"il"ble that shows the AAO's previous linding of fraud was erroneous. 
The motion will be dismissed. The previous decision of the AAO will be affirmed, and the petition will 
remain denied. 
Regarding motions to rcopen or reconsider. 8 C.F.R. ~ I 03.5(a)( I Hii) 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 AJ\Cl's May 4. 2()(J7 decision 
dismissing the appeal. Therefore, a review of any claims or assertions that the petitioner's motion raises 
is limited in scope and is restricted to the AAO's prior decision. In addition. to properly file a motion, 
the regulation at 8 C.F.R~ ~ I 03.5(a)( I )(iii) requires that the motion must be "1[liceompanied by a 
statement about whether or not the validity of the unfavorable decision has been or is the subject of any 
judicial proceeding and. i /' so, the co1ll1. nature. date. and st:ilu.' or result of the proceeding." 
Furthermore, the regulation at K C'.F.R. ~ 1O:l.S(a)(4) requires that "Ial motion that does Ill)t meet 
applicable requirements shall be dismissed. In this case. the petitioner failed to submit a statement 
regarding whether the validity oCthe AAO's decision has been. or is, subject of any judicial proet:eding. 
The regulation mandates that this shortcoming alone requires U.S. Citizenship and Immigration 
Services (USCIS) to dismiss the motion. See K C.F.R. § 103.5(a)(4). 
Notwithstanding the ratal defect noted ahove, the AAO will consider (he current motion to rcopen. As 
an initial mailer. the currenl mol ion to reopen is untimely, 8 c.r.R. ~ 103.5(<1)( 1)( i) provides that: "Any 
motion to reopen a proceeding before the Service filed by an applicant or petitioner, must be filed 
within 3() days of the decision that the motion seeks to reopen, except that failure to file before this 
period expires. may be excused in the discretion of the Service where it is demonslraled that the delay 
was reasonable ;lJ1d was beyond (he control of the applicant or petitioner." The /\;1.0'0. most recent 
decision was issued on May 4, 2007. The petitioner filed the current motion on September 13, 20 II. 
over four years after the issuance of the last AAO decision. Petitioner's current counsel asserts in the 
brief in support of the motion Ihat the motion is untimely because the delay was neees"Jry 10 secure the 
evidence that resulted li'om criminal prosecution of the petitioner's ((mner aUorneys. Along with the 
motion. the petitinner submitted the following documents: 
L An April I (L 2()()7 Jeller fro indicating Ihal hl' rl'presents Ihe 
pctiti\1I1cr's~ 
2. t:vidence o~plea agreement entered on June 8.2007: 
3. Copies of a series or emails between a U.S. Immigration and Customs Eniilrcemenl 
Officer and current counsel from August, 2009 to January, 2(J 1 0; 
4. Letters from the Departmental Disciplinary Committee of the New York Supreme 
Court, dated May 19, 2010. and August 12, 20 lO. respectively; 
5. A May 3, 2010 letter froJ_to the U",ClI' 
6. A June 2. 20 I 0 letter lI'om the petitioner responding 
and 
7. An affidavit to contest the misrepresentation fi nding. I 
leuer: 
'ng to the representatioll ol'the petitiollc,"s husband. and 
item ea agreement, were available in 2007. Thus .. the petitioner eould have 
obtained both items before 2() II. As for item 3, the emails with the Enforcement Officer., 'J thorough 
review of the contents reveal that they do not confirm anything relating to the petitioner's 
representations with her former attorneys, and thereby lack probative evidentiary value. As for items 4-
6 the series of 20]() correspondence relating to the complaint the petitioner made against_ 
... to the New York Supreme Court. the petitioner was aware of the Ai\()'s concerns rclat\l1g to 
derogatory evidence in March 20U7. and the petitioner has failed to provide an explanation for the delay 
in filing the complaint until 2010. Finally, item 7, the affidavit to contest the misrepresentation finding 
could have been prepared earlier, had the petitioner chosen to contest the misrepresentation finding 
earlier. The evidence that the petitioner now submits could also have been secured at an earlier date. 
The AAO, therefore, must find that a four year delay in filing the current motion is not reasonable or 
beyond the petitioner's control. Consequently. because the four year delay is not excusable, the cunent 
motion is untimely pursuant to K C.F.R. § J03.5(a)( I )(i). 
Nonetheless, the AAO wilJ consider the evidence the petitioner now submits to determine ",hether the 
proceedings should be reopened. Motions for the reopening of immigration proceedings arc dishvored 
tor the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly 
discovered evidence. INS v. Dohertv, 502 U.s. 314, 323 (J992)(citing INS v. Ahllcill, 4~5 U.S. 94 
(1988)). A pmiy seeking \0 reopen a proceeding bears a "heavy burdell." INS v. Ahudll. 4~5 U.S. at 
1111. A motion to rcopcn must "ate the new facts to be provided and bc supported by affidavits or 
other documentary evidence. S C'.F.R. § 103.5(a)(2). Based on the plain rn"aning of "ncw." a new 
fact is found to he evidence that was not availah1c and could not have been discovered or presented in 
the previous proceeding." While some of the current evidence. as listed by number in the previous 
paragraph, further substantiates the claim of potential malleasanee on the part of the petitioner's 
purported attorneys, the prior AAO decision considered the petitioner's arguments relating to 
allegations of malfeasance. 
As an initial matter. the ;\.\O·s ivlay 4. 2007 decision observed that the record included no Form (i-21-\, 
Notice of Entry of rellecting that the petilioner was 
represented by attorneys immigration matters. The 
cvidence the pctitioller previously submitted and submits with the motion do 
I The record reflects also known' _ 
-~ The word "new" is defined as .~ I: having feee,nlly c()~e int~l cxi~tcl1cc _ 2<1 (I) : havjll~ 
heen seen, used, or known tor a short time: \{J\-j,j <nee wa~ the area> . 
hllp:,'":.wW\Y' .. llll'.rriaql:-wch,,,tcL.t,:nnlidictio!l-,lry/I1S~_\.V, accessed on November X, 2012. 
not sufficiently establish that the petitioner was actually 
committed fraud without her knowledge. The 
record. dated August 30. 2003. reflects that the client 
_letter Jated April 10. 2007 states that: "rtjhis 
immigration matters in the United States." Furthermore. in 
the Disciplinary Committee. he disavows ever having represe or . petltlonel 
Form 1-140 petition. Consequently. the petitioner has failed to establish that she was ev~ 
or assisted in her Form 1-140 petition and related matters by either-... or __ 
_ the two attorneys that the petitioner alleges committed th~le[ visa petllion. 
While the petitioner rekrenees a Februarv 7, 2007 "notice of intent to deny" listing Mr. ~s her 
attorney in her response to Mr._May 3, 2010 letter. the A;\O issued its notice 01' intent to 
dismiss the appeal on March 7, 2007 and did not list Mr.~s her attorney. 
The May 4. 20m AAO decision also determined that the petitioner signed her Form 1-14(). thereby 
certifying under penalty of perjury that the petition and the evidence submitted with it arc all true and 
correct. See section 2t17(b) of the Act. tI USc. ~ 1357(b): .Ice al.I(). 2t: U.S.c. ~ 1746 and It1 USc. 
* 1621. Furthermore, the A;\O continues to find it significant that the previous submissions to USCIS 
relating to her visa petition were sent in envelopes which reflected the petitioner's home address in 
Staten Island. While the petitioner maintains that she was unaware of the contents of the envelopes and 
she only followed the instructions of her attorneys, the petitioner cannot be absolved of her 
responsibility to provide information and evidence that arc true and correct, which she attested to under 
penalty of perjury. None of the evidence that the petitioner now submit, is probative or otherwise has 
any bearing on this critical hasis of the A;\C)'s prior tinding of fraud. 
To the extent that the petitioner is making a claim of ineffective assistance of counsel along with her 
motion. the prior AAO decision stated the requirements for making such a claim pursuant to Matter of' 
I.Olada. 19 I&N Dec. 637 (BIA I <)tltI), a/I'd, ~57 F,2d 10 (1" Cir. 1l)~8), and determined that the 
petitioner failed to satisfy those requirements. Significantly, in the clirrent motion. the petitioner does 
not challenge (lUI' previous determination of her failure to meet the Lozada requirements precludes a 
finding of ineffective of assistance of counsel. nor does the petitioner asSCl1 that the AAO's previous 
reliance upon that precedent decision was erroneous. Therefore, the AAO concludes that allY claim of 
ineffective assistance of counsel was fully considered. 
Finally. the Mav 7. 2007 AAO decision. alkr making a trami finding. lidlv cL""'iLierl'd the petitioner's 
appeal on the l11erits and concluded that the petitioner ElileJ to establish her eligibility as an "alien with 
extra(lrdinar~ ability" under 203(h) oj' the Immigration and Nationality Act. 8 U.S.C. Ii 1153(b)(I)(A), 
and thc implementing regUlations. The current motion contains no evidence relating to the merits or the 
petitioner's underlying visa petition and the petitioner does not challcnge the AN),s decision in this 
regard. Consequently, the AAO considers abandoned any claims rdated to the merits of the petitioner's 
underling visa petition. Sepllll'eda v. U.S. AtI'y (i,'Il., 401 F.3d 1226. 122S n. 2 (111h Cir. 
20(5): Hri.ltov \'. Roark, No. O<)-CV-2731201l, 2011 WL 4711t1t15 at *1. <) (E.D.N.Y. Sept. 30, 
20 II) (the court flllll1d the plaintiffs claims to he abandoned as he failed to raise them I)n appeal to 
the AAO). 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the 
Act, b USC § 13f> I. lIere, the petitioner has not sustained that burden. Accordingly. the motion will 
be dismissed. 
ORDER: The Illotion is dismissed. the ;\;\o·s March 4. 2007 decision is affirmed. :rnd the 
petition remains denied.