dismissed EB-1A Case: Writing And Filmmaking

U.S. Citizenship 
and Immigration 
Services 
In Re: 23473811 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 10, 2023 
Form 1-140, Immigrant Petition for Alien Workers (Extraordinary Ability) 
The Petitioner, a writer and filmmaker, seeks classification as an alien of extraordinary ability. See 
Immigration and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § 1153(b)(l)(A). This first 
preference classification makes immigrant visas available to those who can demonstrate their 
extraordinary ability through sustained national or international acclaim and whose achievements have 
been recognized in their field through extensive documentation. 
The Nebraska Service Center Director denied the Form 1-140, Immigrant Petition for Alien Workers 
(petition), concluding the Petitioner did not establish he met the initial evidence requirements of this 
classification through either evidence of a one-time achievement (a major, internationally recognized 
award) or meeting three of the evidentiary criteria under 8 C.F.R. § 204.5(h)(3). We agreed with the 
Director and dismissed his appeal, which is now before us on a motion to reopen. The Petitioner bears 
the burden of proof to demonstrate eligibility by a preponderance of the evidence. Section 291 of the 
Act; Matter of Chawathe, 25 l&N Dec. 369, 375 (AAO 2010). Upon review, we will dismiss the 
motion. 
The term "extraordinary ability" refers only to those individuals in "that small percentage who have 
risen to the very top of the field of endeavor ." 8 C.F.R. § 204.5(h)(2). The implementing regulation 
at 8 C.F.R . § 204.5(h)(3) sets forth a multi-part analysis. First, a petitioner can demonstrate sustained 
acclaim and the recognition of his or her achievements in the field through a one-time achievement 
(that is, a major, internationally recognized award). 
If that petitioner does not submit this evidence, then he or she must provide sufficient qualifying 
documentation that meets at least three of the ten categories listed at 8 C.F.R. § 204.5(h)(3)(i)-(x) 
(including items such as awards, published material in certain media, and scholarly articles). Where 
a petitioner meets these initial evidence requirements, we then consider the totality of the material 
provided in a final merits determination and assess whether the record shows sustained national or 
international acclaim and demonstrates that the individual is among the small percentage at the very 
top of the field of endeavor. See Kazarian v. USCIS, 596 F .3d 1115 (9th Cir. 2010). 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R . 
§ 103.5(a)(2). According to the Instructions for Notice of Appeal or Motion (Form 1-290B, Notice of 
Appeal or Motion), any new facts and documentary evidence must demonstrate eligibility for the 
required immigration benefit at the time the application or petition was filed. A motion to reopen that 
does not satisfy the applicable requirements must be dismissed. 8 C.F.R. § 103.5(a)(4). 
We do not require the evidence of a "new fact" to have been previously unavailable or undiscoverable. 
Instead, we interpret "new facts" to mean those that are relevant to the issues raised on motion and 
that have not been previously submitted in the proceeding, which includes within the original petition. 
Reasserting previously stated facts or resubmitting previously provided evidence does not constitute 
"new facts." 
On motion, the Petitioner addresses the judging criterion at 8 C.F.R. § 204.5(h)(3)(iv) and the 
contributions criterion at 8 C.F.R. § 204.5(h)(3)(v). In support of those claims, he either: (1) offers 
new eligibility claims that were presented to the Director but that were not advanced in his appeal 
filing; (2) presents new claims that he never previously asserted before the Director or on appeal; or 
(3) submits evidence that came into being after the petition filing date. Each of these actions are 
prohibited within the current proceedings, as we explain below. 
Our review of the record reveals the Petitioner collectively asserted his claims before the Director, but 
he failed to offer all of those same claims in his appeal. When he failed to assert any previous claims 
within his appeal, he abandoned or waived those claims. 1 See Matter of Valdez, 27 I&N Dec. 496, 
496 n.1 (BIA 2018) ( concluding that an issue is deemed waived when it is not challenged). This means 
we will not factor those abandoned claims into this or any future motion decision based on this 
particular petition. He is, however, eligible to reintroduce these claims in any future petition filing 
(i.e., a new Form I-140). 
Also, as it relates to a motion to reopen, the requirement for "new facts" pertains to new information 
associated with the eligibility claims a filing party presented to us in their most recent filing; in this case, 
in the Petitioner's appeal brief A motion to reopen should not act as a vehicle-as a Trojan horse of 
sorts-to introduce new eligibility claims for the first time. These two concepts (new facts versus new 
eligibility claims) are distinct and are not interchangeable. New eligibility assertions advanced for the 
first time to an administrative appellate body are not properly before us. Matter of M-F-O-, 28 I&N Dec. 
408,410 n.4 (BIA 2021) (refusing to consider an appellant's humanitarian claims that were presented for 
the first time on appeal). 
We offer two examples. First, the Petitioner claimed on appeal that he was a member of the jury of 
______________ _,during the tenth edition of the Festival, and this should serve as 
one basis for satisfying the judging the work of others criterion. The Petitioner may present new facts 
that are supported by evidence relating to that judging role, but he may not now introduce new instances 
in which he may have judged the work of others that he did not present in his appeal brief, and that was 
not a part of our decision on that appeal. To illustrate, on motion the Petitioner provides claims and 
evidence that he was a member of the final round jury for the category at thel I 
I IFilm Festival. Because this is the first time he asserts this claim, it would not be appropriate 
1 For instance, in his filing before the Director under the contributions criterion, the Petitioner claimed his novel 
I I was commonly regarded as a major milestone of contemporary Chinese Literature. However, he did not 
advance this same claim within his appeal, and we consider it abandoned here. 
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for us to factor this material into our decision within these proceedings. The Petitioner, however, is free 
to submit this material in any new petition filing. 
Our second example relates to the Petitioner's claims on motion that his writing was featured in the book, 
I I The Petitioner did not assert this claim in his appeal, 
nor did he address it before the Director. Therefore, even though he raises it in this motion to reopen, we 
will not factor it into these proceedings. 
Finally, the Petitioner presents evidence on motion to support his new facts, but that material postdates 
the etition filin date (March 30, 2020 . For instance, a I 2022 article titled,I I 
was created after he filed the petition. 
A request for an immigration benefit "must establish that he or she is eligible for the requested benefit at 
the time of filing the benefit request and must continue to be through adjudication." 8 C.F.R. 
§ 103.2(b)(l); Ahmed v. Mukasey, 519 F.3d 579, 582 (6th Cir. 2008); Karakenyan v. US. Citizenship 
& Immigr., 468 F. Supp. 3d 50, 52 (D.D.C. 2020). 
U.S. Citizenship and Immigration Services (USCIS) may not approve a visa petition if the Petitioner 
was not qualified at the priority date but attempts to become eligible at a subsequent time. See Matter 
of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). Any additional evidence submitted in 
connection with a benefit request at a later date must also establish "eligibility at the time the benefit 
request was filed." 8 C.F.R. § 103.2(b)(l2). "Under this rule, USCIS will deny [an immigration benefit] 
if the [ filing party] becomes eligible only after the [benefit] was filed." Tingzi Wang v. United States 
Citizenship & Immigr. Servs., 375 F. Supp. 3d 22, 27 (D.D.C. 2019); Doe v. United States Citizenship 
& Immigr. Servs., 410 F. Supp. 3d 86, 100 (D.D.C. 2019). 
Here, the Petitioner has not satisfied the requirements for a motion to reopen. Specifically, he has not 
offered new facts-associated with his previous eligibility claims-that are also supported by 
evidence demonstrating he satisfied either the judging criterion at 8 C.F.R. § 204.5(h)(3)(iv), or the 
contributions criterion at 8 C.F.R. § 204.5(h)(3)(v) as of the date he filed the petition. The result of 
this shortcoming is that the Petitioner has not demonstrated that we should reopen the proceedings. 
ORDER: The motion to reopen is dismissed. 
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