dismissed EB-1A Case: Winemaking

identifying data deleted to 
prevent clearly unwarrante~ 
invasion of personal privacy 
PUBLTC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice ofAdminisfrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
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. 3 I I53(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to 
have considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 
3 103.5 for the specific requirements. All motions must be submitted to the office that originally decided 
your case by filing Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be 
filed within 30 days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 
§ 103.5(a)(l)(i). 
i,@&&!flk 
(I"~em Rhew 
chief, Administrative Appeals Office 
DISCUSSION: The Director, Nebraska Service Center, denied this employment-based 
immigrant visa petition on May 8, 2008. The Administrative Appeals Office (AAO) dismissed 
the petitioner's appeal of that decision on June 16, 2009. The matter is now before the AAO on a 
motion to reopen and a motion to reconsider. The motions will be dismissed, the previous decision 
of the AAO will be affirmed, and the petition will remain denied. 
On motion, counsel submitted the following documentation: 
1. An article, dated August 2009, Fresh Summer Wines 178 Best Buys, from 
Wine and Spirits Magazine, which ranks the 2006 Finger Lakes Dry 
Riesling Tierce (Tierce) as 94'"; 
2. Information from Wine Spectator, dated January 3 1 - February 28, 2009, 
reflecting that there were only 3 wines which earned a rating between 90- 
94 in 2008; 
3. An article, dated May 28, 2009, N. Y Wines Win 2 Top Awards at Eastern 
Competition, from ivwiv.den1ocra1c?ndc11ronicle.com, reflecting that the 
2006 Tierce was named best white wine at the 2009 International Eastern 
Wine Competition (IEWC); 
4. An article, dated June 4, 2009, Finger Lakes Riesling Sweeps Awards, 
from u\bu.timesi~njon.com, reflecting that the 2006 Tierce won an award 
at the 2009 IEWC; and 
5. An article, dated June 2009, A Study in Riesling, from Wines and Vines, 
which is about Tierce and briefly includes the beneficiary's involvement 
with the wine. 
Counsel further claims on motion: 
Although these documents are from publications subsequent to the filing of the 
original immigrant visa petition, they all relate to the 2006 Tierce wine, which 
collaboration and wine was created prior to the submission of the petition. Although 
evidence of the recognition of this unique collaboration was submitted as part of the 
original petition, these supplemental submissions nevertheless relate to the original 
creation of the 2006 Tierce wine project. 
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. 5 103.5(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. ' 
I 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 11 NEW R~vERs~DE UNIVERSITY DICTIONARY 792 (1984)(emphasis in 
original). 
Page 3 
We are not persuaded by counsel's assertions that the documents submitted on motion should be 
considered because they relate to the 2006 Tierce wine project. The employment-based petition 
was originally filed on May 24, 2007. While the record appears to reflect that the Tierce wine was 
developed in 2006, the submitted documentation by counsel on motion relates to events occurring 
after the filing of the petition. For example, the award at the 2009 IEWC occurred from May 18-20, 
2009. In fact, regarding item 1, the article was published in the magazine in August 2009, after the 
AAO dismissed the original appeal. As such, we will not consider the evidence to establish the 
petitioner's eligibility. Eligibility must be established at the time of filing. 8 C.F.R. 
$9 103.2(b)(l), (12); Matter of Kutigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). A petition 
cannot be approved at a future date after the petitioner becomes eligible under a new set of facts. 
Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r. 1998). That decision further provides, citing 
Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that we cannot "consider facts that come 
into being only subsequent to the filing of a petition." Id. at 176. Therefore, a review of the 
evidence that counsel submits on motion reveals no fact that could be considered "new" under 8 
C.F.R. 5 103.5(a)(2) and will not 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. Abz~du, 485 U.S. at 11 0. With the current 
motion, the petitioner has not met that burden. The motion to reopen will be dismissed. 
In the motion to reconsider, counsel reiterates the same arguments made in the original appeal 
and claims that the AAO did not properly evaluate the evidence. 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.K. 5 103.5(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. 399,403 (BIA 1991). 
A motion to reconsider cannot be used to raise a legal argument that could have been raised 
earlier in the proceedings. 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 may 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. 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. See 
Matter of Medruno, 20 I&N Dec. 216, 219 (BIA 1990, 1991). 
In this case, counsel failed to support his motion with any precedent decisions or other evidence 
to establish that the decision was based on an incorrect application of law or USCIS policy. The 
motion to reconsider will be dismissed. 
Page 4 
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 
of the Act, 8 U.S.C. tj 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion to reopen and the motion to reconsider are dismissed, the decision of the 
AAO dated June 16, 2009, is affirmed, and the petition remains denied.