dismissed EB-1A Case: Unknown

(b)(6)
DATE: JUN 0 3 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: PETITIONER: 
BENEFICIARY: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachuset ts Ave., N.W., MS 2090 
WashinR.ton. DC 2
0529-2090 
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 Admini strative 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.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) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~?}:_ tr-Ron Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition on September 24, 2010. The Administrative Appeals Office (AAO) entered a finding that 
the petitioner willfully misrepresented a material fact, and failed to meet the minimum eligibility 
requirement necessary to qualify for the employment-based immigrant visa on June 18, 2012. The 
matter is now before the AAO on a motion to reopen and reconsider, filed on July 18, 2012. The 
motion will be dismissed. The previous decision of the AAO will be affirmed, and the petition will 
remain denied. 
I. Requirements of a Motion 
The regulation at 8 C.F.R. § 103.5(a)(1)(iii) informs the public of the filing requirements for a 
motion and provides in subsection (C) that a motion shall be submitted on Form I-290B and it 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." 
On motion, counsel has failed to submit a statement indicating if the validity of the AAO ' s June 18, 
2012 unfavorable decision has been or is the subject of any judicial proceeding pursuant to the 
regulation at 8 C.F.R. § 103.5(a)(1)(iii)(C). The regulation at 8 C.F.R. § 103.5(a)(4) requires that 
"[a] motion that does not meet applicable requirements shall be dismissed." Accordingly, the 
motion must be dismissed pursuant to the regulation at 8 C.F.R. § 103.5(a)(4) without regard to the 
claims contained within the motion. 
II. Motion to Reopen and Reconsider 
A party seeking to reopen a proceeding bears a heavy burden and "must state the new facts to be 
provided in the reopened proceeding and be supported by affidavits or other documentary evidence." 
8 C.F.R. § 103.5(a)(2). Based on its discretion , "the INS [now the U.S. Citizenship and Immigration 
Services (USCIS)] has some latitude in deciding when to reopen a case. [USCIS] should have the 
right to be restrictive. Granting such motions too freely will permit endless delay of deportation by 
aliens creative and fertile enough to continuously produce new and material facts sufficient to establish 
a prima facie case." INS v. Abudu, 485 U.S. 94, 108 (1988). The result also needlessly wastes the time 
and efforts of the triers of fact who must attend to the filing requests. !d. 
A motion to reconsider 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). 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. Id. at 60. 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 or previously unavailable evidence. See Matter of Cerna, 20 I&N Dec. 399, 
403 (BIA 1991). 
(b)(6)
Page 3 
On motion, counsel has filed a Form I-290B and a letter, dated July 17, 2012. According to the 
letter, counsel files the motion because "[a]ttorneys for [the petitioner] did not receive a copy of the 
lTD [the AAO's notice of intent to dismiss]" and because "[t]he 15 days granted in [the notice of 
intent to dismiss) was an arbitrary amount of time chosen by the AAO." The motion is dismissed 
for the following reasons. 
First, the motion to reopen is dismissed because counsel has provided no affidavits or other 
documentary evidence in support of the motion. Specifically, the regulation at 8 C.P.R. 
§ 103.5(a)(2) provides that to meet the requirements of motion to reopen, the petitioner "must state 
the new facts to be provided in the reopened proceeding and be supported by affidavits or other 
documentary evidence." (Emphasis added.) Although counsel claims in his letter that he did not 
receive AAO's May 2, 2012 notice of intent to dismiss, he has provided neither affidavits nor other 
documentary evidence to support his claim. Without documentary evidence to support the claim, 
the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported 
assertions of counsel do not constitute evidence. Matter of Obaigbena, 19 I&N Dec. 533, 534 n.2 
(BIA 1988); Matter of Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter of Ramirez-Sanchez, 17 
I&N Dec. 503,506 (BIA 1980). 
Moreover, there is a presumption of effective service and receipt of the notice because there is a 
presumption that the United States Postal Service properly performed its duties, when, as in this 
case, the notice of intent to dismiss was properly addressed to both the petitioner and counsel, 
stamped and mailed. See Lopes v . Mukasey, 517 F.3d 156, 159-60 (2d Cir. 2008) (the presumption 
of receipt in regular mail cases "shift[ s] a tie-breaking burden of proof to the alien claiming non­
receipt"); see also Modzelewski v. Holder, 402 F. App' x 654, 656 (2d Cir. 2010); Matter of M-R-A-, 
24 I&N Dec. 665, 671-73 (BIA 2008). The petitioner has not overcome the presumption of 
effective service and receipt, as neither he nor his counsel has provided any evidence, including 
affidavits, to the contrary. Finan y, the notice of intent to dismiss was sent to both the petitioner and 
counsel. Although counsel asserts in his July 17, 2012letter that 
"[a]ttorneys for [the petitioner] did 
not receive a copy of [the notice of intent to dismiss]," counsel does not assert, and has not provided 
any evidence showing, that the petitioner similarly did not receive a copy of the notice. 
Second, the motion to reconsider is dismissed because counsel has failed to establish through 
pertinent precedent decisions, applicable law or applicable USCIS policy that the AAO's June 18, 
2012 decision was made in error. Counsel asserts in his July 17, 2012 letter that the "15 days 
granted [in the notice of intent to dismiss] was an arbitrary amount of time chosen by the AAO." 
Counsel, however, has cited no legal support for his assertion. As noted in the AAO's May 2, 2012 
notice of intent to dismiss, the regulation at 8 C.P.R. § 103.2(b)(16)(i) does not specify the amount 
of time afforded to a petitioner to respond to derogatory evidence, and the AAO considers 15 days 
to be ample time for this purpose. Indeed, Matter of Obaigbena, 19 I&N Dec. 533, 536 (BIA 
1988), holds that the 15-day time limit for submitting a response to a notice of intent to dismiss is 
reasonable. Specifically, the case provides: 
The regulations do not prescribe any time limits for the issuance of a notice of 
intention to deny a visa petition or for the submission of a rebuttal to such a notice of 
(b)(6)Page 4 
intention to deny .... Similar regulations governing the time limits for responding to 
adverse Service [director] decisions, such as filing appeals from a decision denying a 
visa petition or from a decision revoking the approval of a visa petition, impose a 15-
day deadline after the service of the notification of the decision. See 8 C.F.R. 
§§ 204.1(a)(3), 205.2(b) (1988). (The Board of Immigration Appeals] therefore 
do[es] not find that the imposition of a 15-day time limit for submitting a rebuttal to 
a notice of intention to deny, per se, is unreasonable. 
Id. Moreover, the record does not support counsel specific assertion that the petitioner required 
more than 15 days to rebut the derogatory information provided by the AAO in its May 2, 2012 
notice because the petitioner would need to obtain affidavits from individuals in China. The 
derogatory information involved a letter from , president of the 
located in Maryland and the results of a competition in Maryland. 
Counsel has not explained why affidavits from individuals in China are necessary to explain the 
discrepancies within the evidence from U.S. entities. 
Finally, in its June 18, 2012 decision, in addition to the finding that the petitioner willfully 
misrepresented a material fact, the AAO dismissed the petitioner's appeal based on the alternative 
ground that the petitioner failed to demonstrate her receipt of a major, internationally recognized 
award, or that she met at least three of the ten categories of evidence that must be satisfied to 
establish the minimum eligibility requirements necessary to qualify as an alien of extraordinary 
ability. See 8 C.F.R. § 204.5(h)(3). The instant motion fails to address or challenge the AAO's 
alternative finding. Instead, counsel states in his July 17, 2012 letter that the "[p]etitioner is in the 
process of obtaining affidavits and certified translations of extensive documentation of (her] 
sustained national and international acclaim." A motion must meet the regulatory requirements of a 
motion to reopen or reconsider at the time it is filed. No provision exists for USCIS to grant an 
extension to counsel or the petitioner to file evidence or arguments in the future. See 8 C.F.R. 
§ 103.5(a)(1)(i). 
In conclusion , the motion to reopen and reconsider is dismissed because counsel has failed to 
submit a statement regarding any judicial proceeding relating to the validity of the AAO's June 18, 
2012 unfavorable decision and because the filing does not meet the requirements of a motion to 
reopen or reconsider. 
ORDER: The motion is dismissed, the decision of the AAO dated June 18, 2012 is affirmed, 
and the petition remains denied.