remanded EB-1A Case: Music

U.S. Citizenship 
and Immigration 
Services 
MATTER OF D-E-H-S-
APPEAL OF TEXAS SERVICE CENTER DECISION 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE : OCT. 9, 2019 
PETITION: FORM 1-140, IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a musician, seeks classification as an individual of extraordinary ability in the arts. 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 Director of the Texas Service Center denied the petition, concluding that the Petitioner had not 
provided documentation satisfying the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), 
which requires documentation of a one-time achievement , or evidence that meets at least three of the 
ten regulatory criteria. The Petitioner then filed a combined motion to reopen and motion to 
reconsider. The Director dismissed the motion, concluding that the Petitioner did not establish that 
the denial was incorrect based on the evidence of record at the time of the initial decision. The matter 
is now before us on appeal. 
We will withdraw the Director's decision and remand the matter for the entry of a new decision 
consistent with the following analysis. 
I. ANALYSIS 
Although the Petitioner 's appellate brief primarily addresses the Director's initial denial decision, we 
emphasize that the Petitioner did not appeal the denial order itself, but rather the Director's subsequent 
finding that its combined motion did not meet the requirements of a motion to reopen or motion to 
reconsider. Therefore , the merits of the denial decision, and of the underlying petition , are not before 
us. The only issue before us is whether the Director properly found that the combined motion did not 
meet applicable requirements of a motion to reopen or a motion to reconsider. A motion that does not 
meet applicable requirements must be dismissed . 8 C.F.R. § 103.5(a)(4). 
A motion to reopen is based on factual grounds and must (1) state the new facts to be provided in the 
reopened proceeding ; and (2) be supported by affidavits or other documentary evidence. 8 C.F .R. 
§ 103.5(a)(2). A motion to reconsider must establish that our decision was based on an incorrect 
application oflaw or U.S. Citizenship and Immigration Services (USCIS) policy and that the decision 
Matter of D-E-H-S-
was incorrect based on the evidence in the record of proceedings at the time of the decision. 8 C.F.R. 
§ 103.5(a)(3). 8 C.F.R. § 103.5(a)(3). 
Although the Director acknowledged that the Petitioner filed a combined motion to reopen and motion 
to reconsider, the decision dismissing the motion did not cite to the regulatory requirements for filing 
a motion to reopen, or otherwise address the motion to reopen or why it was insufficient to meet those 
requirements. Therefore, we find that the Director did not adjudicate the motion to reopen. 
With respect to the Petitioner's motion to reconsider, we note that the Director addressed only one of 
several legal arguments made in the 26-page brief submitted in support of the motion. Specifically, 
the Director acknowledged the Petitioner's reliance on Hristov v. Roark, No. 09-CV-27312011, 2011 
WL 4711885 at 7-8 (E.D.N.Y. Sept. 30, 2011) in support of its claim that his awards qualify as 
nationally or internationally recognized awards given for excellence in his field of endeavor. 
Specifically, the Petitioner claimed that the Director incorrectly determined that he was not "officially 
credited" for a nationally recognized award and pointed to evidence showing that he had received an 
individual award certificate along with the award statuette awarded to his band at the I I I I in Venezuela. The Director did not acknowledge this claim and instead reached a 
conclusion that "the Circuit Court's [sic] decision apparently supports the AAO decision [sic] with 
regard to plaintiff not being the direct recipient of the awards in his name for his work as lead guitarist." 
Further, in its brief on motion, the Petitioner alleged several errors in the Director's application of the 
regulatory criteria to the facts presented and in the Director's interpretation of the plain language of 
those criteria. The Director did not address these arguments, and instead summarily concluded that 
the motion did not "establish that the decision was incorrect based on the evidence of record at the 
time of the initial decision." An officer must fully explain the reasons for denial in order to allow the 
petitioner a fair opportunity to contest the decision and to allow us an opportunity for meaningful 
appellate review. See 8 C.F.R. § 103.3(a)(l)(i); see also Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) 
(finding that a decision must fully explain the reasons for denying a motion to allow the respondent a 
meaningful opportunity to challenge the determination on appeal). 
Therefore, because the Director has not yet addressed the merits of the Petitioner's motion to reopen 
or fully addressed the merits of the motion to reconsider, the record of proceeding is not ripe for us to 
consider the Petitioner's arguments in that motion. The Director must at least address the Petitioner's 
claims and any new facts, and explain why they are deficient to overcome the denial of the petition. 
II. CONCLUSION 
As the Director's decision did not address the Petitioner's motion to reopen or sufficiently address the 
merits of the Petitioner's motion to reconsider, we will remand the matter for entry of a new decision. 
ORDER: The decision of the Director is withdrawn. The matter is remanded for the entry of a 
new decision consistent with the foregoing analysis. 
Cite as Matter of D-E-H-S-, ID# 5189408 (AAO Oct. 9, 2019) 
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