dismissed EB-2 Case: Unknown

identifying data deleted to 
prevent clearly umvarr~nted 
invasion of personal pnvacy 
PlJBUCCOPY 
Date: Office: TEXAS SERVICE CENTER 
JUL 0 2 2012 
IN RE: Petitioner: 
Beneficiary: 
t:.S. D('partment of Uomcland Sccurit) 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W .. MS 2090 
Washine.ton. DC 20529-2090 
u.s. Citizenship 
and Immigration 
Services 
File: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an 
Advanced Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the 
Immigration and Nationality Act, 8 U.S.C. § I I 53(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative 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)(I)(i) requires any motion to be filed 
within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
W\\'w.uscis.gov 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director, Texas Service Center. 
The subsequent appeal was dismissed by the Administrative Appeals Office (AAO), I The matter is 
now before the AAO on a motion to reopen or reconsider. The motion will be dismissed, the 
previous decision of the AAO will be affirmed, and the petition will remain denied. 
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. § 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 2 Counsel submitted documents with the motion that are identical to the 
documents submitted with the previous appeal. A review of the evidence that counsel submits on 
motion reveals no fact that could be considered "new" under 8 C.F.R. § 103.5(a)(2) and, therefore, 
Calmot 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. Ahudu, 485 U.S. 94 (1988)). A party seeking to 
reopen a proceeding bears a "heavy burden." INS v. Ahudu, 485 U.S. at 110. With the current 
motion, the petitioner has not met that burden. The motion to reopen will be dismissed. 
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.R. § 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. See Matter of Medrano, 20 I&N Dec. 216, 220 (BIA 1990, 1991). 
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 could 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. Matter of O-S-C-, 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. 
I The previous AAO decision listed an incorrect receipt number 
decision addressed the issues presented in the case with receipt number 
As the substance of the appeal addressed the issues arising in the appeal filed for the instant 
proceeding, the provision of the incorrect receipt number constitutes 
harmless error. 
2 The word "new" is defined as "I. having existed or been made for only a short time ... 3. Just 
discovered, found, or learned <new evidence> .... " WEBSTER'S II NEW RIVERSIDE UNIVERSITY 
DICTIONARY 792 (1984) (emphasis in original). 
Page 3 
The present motion to reconsider does not allege that the issnes, as addressed in the previous 
AAO decision on appeal, involved the application of precedent to a novel situation, or that there 
is a new precedent or a change in law that affects the AAO's prior decision, Instead, counsel 
provided a statement on the Form 1-290B nearly identical to the statement provided on the prior 
Form 1-290B. The statement did not reference the AAO decision previously entered. As noted 
above, a motion to reconsider must include specific allegations as to how the AAO erred as a 
matter of fact or law in its prior decision, and it must be supported by pertinent legal authority. 8 
C.F.R. § 103.5(a)(3); see Matter of Medrano, 20 I&N at 219; Matter of O-S-G-, 24 I&N Dec. at 
58-60. 
For the foregoing reasons, the motion to reopen and reconsider is dismissed. The burden of 
proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act, 8 
V.S.c. § 1361. Here, the petitioner has not sustained that burden. 
ORDER: The motion to reconsider and the motion to reopen are dismissed, the decision of the 
AAO dated August 31, 2010 is affirmed, and the petition remains denied.