dismissed O-1B Case: Painting

U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 009 53707 Office: VERMONT SERVICE CENTER Date: Q 0 2008 
PETITION: 
 Petition for a Nonirnmigrant Worker under Section lOl(a)(lS)(O)(i) of the Immigration and 
Nationality Act, 8 U.S.C. 5 1 10 1 (a)(15)(0)(i) 
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. 
q/--:p 
i Robert P. Wiemann, Chief 
(b 
dministrative Appeals Office 
EAC 04 009 53707 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimrnigrant visa petition, and the 
Administrative Appeals Office (AAO), dismissed the petitioner's subsequent appeal. The petitioner 
subsequently filed a late motion to reopen or reconsider, which the AAO dismissed as untimely filed pursuant 
to the regulation at 8 C.F.R. 5 103.5(a)(l)(i). The matter is now before the AAO on a second motion to reopen 
and reconsider. The AAO will reject the motion as untimely filed. 
The petitioner, an art studio, filed this petition seeking to classifL the beneficiary as an 0-1 nonirnrnigrant 
pursuant to section 101(a)(15)(0)(i) of the Immigration and Nationality Act (the Act), as an alien with 
extraordinary ability in the arts. The petitioner seeks to employ the beneficiary in a part-time position as a painter 
for a three-year period. 
The petition was filed on October 14, 2003, and was ultimately denied on February 13, 2004.' The director 
concluded that the petitioner had failed to establish that the beneficiary satisfied the regulatory criteria for an 
alien with extraordinary ability in the arts. In denying the petition, the director noted that the consultation 
letter provided by the petitioner did not meet the criteria set forth at 8 C.F.R. 5 214.2(0)(5)(ii). The director 
determined that the submitted consultation letter addressed whether the beneficiary met the standards for 
"cultural uniqueness" rather than discussing his qualifications as a painter of extraordinary ability. 
The petitioner filed a timely appeal on March 5, 2004, at which time it filed a new consultation letter, but no 
other additional evidence. The AAO dismissed the petitioner's appeal on May 25, 2005. The AAO 
acknowledged that the petitioner submitted a consultation letter that correctly addressed the issue of whether 
the beneficiary is an alien of extraordinary ability in the arts, and thus overcame one of the director's 
objections to approving the petition. However, the AAO determined that the petitioner failed to address the 
director's finding that the petitioner had not established that the beneficiary met the evidentiary criteria set 
forth at 8 C.F.R. !j 214.2(0)(3)(iii). 
The petitioner subsequently filed a motion to reconsider on July 20, 2005, 56 days after the AAO issued its 
decision. On March 20, 2006, the AAO dismissed the motion as untimely filed without addressing the merits 
of the petitioner's claims. 
The petitioner filed the instant motion to reopen on February 15, 2007, or 631 days subsequent to the AAO's 
decision dismissing the petitioner's appeal. Counsel for the petitioner fblly acknowledges that the motion is 
filed well outside the time period established by regulation. 
The regulation at 8 C.F.R. 5 103.5(a)(l)(i) requires that any motion to reopen or reconsider an action by 
Citizenship and Immigration Services (CIS) be filed within 30 days of the decision that the motion seeks to 
reopen or reconsider, except that failure to file before this period expires may be excused in the discretion of CIS 
- - 
1 
The director initially denied the petition on February 2, 2004, noting that the petitioner had failed to respond 
to a request for evidence issued on October 22,2003. The director subsequently re-opened the matter in order 
consider additional evidence submitted by the petitioner on February 3,2004. 
EAC 04 009 53707 
Page 3 
where it is demonstrated that the delay was reasonable and was beyond the control of the petitioner. If the 
decision was mailed, the motion must be filed within 33 days. See 8 C.F.R. $ 103.5a(b). 
Here, counsel argues that the petitioner has "good cause" for the untimely filing of the motion. Counsel 
explains as follows: 
The appeal was denied on May 25, 2005. The delay in filing this motion since that time was 
as a result of the fact that the Petitioner filed a motion to reconsider and then, while that 
motion was pending, filed a new 0-1 visa petition on April 3, 2006. The latter petition was 
approved on October 2, 2006. We received the decision on November 12, 2006, and began 
working on the instant motion immediately thereafter. 
We petitioned for the new 0-1 classification in good faith, attaching only evidence that was 
already on record from the original petition and the appeal. . . . 
The attached approval notice therefore helps to establish that the beneficiary is in fact an alien 
who possesses extraordinary ability in the field of fine arts painting. We ask that you accept 
this new evidence into consideration and make a decision accordingly. 
The petitioner submits a copy of a Form I-797B Approval Notice for an 0-1 classification 1-129 petition filed 
on behalf of the instant beneficiary by Gibco, Inc., which was approved on October 2, 2006, with validity 
dates of September 27,2006 through June 1,2009. 
Upon review, counsel's argument is not persuasive, and the motion will be rejected as untimely filed. The 
petitioner's failure to file the motion within the period allowed will not be excused as either reasonable or beyond 
the control of the petitioner. 
Contrary to counsel's statement, the petitioner did not have a motion pending at the time the second 1-129 petition 
was filed on behalf of the beneficiary. The AAO dismissed the petitioner's previous untimely motion on March 
20, 2006, and a different petitioner, Gibco Inc., filed an 1-129 petition on the beneficiary's behalf on April 3, 
2006. The second llonimrnigrant petition was filed two and one-half years subsequent to the filing of the instant 
petition. The petition was approved six months later, and the instant motion was filed more than four months after 
the petition approval. The petitioner has offered no explanation as to why this delay should be considered 
reasonable or beyond the petitioner's control, or why the approval of a second petition filed by a different 
petitioner would exempt the instant petitioner from adhering to the 30-day timefiame for the filing of a motion 
established by regulations. Accordingly, the motion will be rejected as untimely filed. 
Motions for the reopening of immigration proceedings are disfavored for the same reasons as 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. Abudu, 485 U.S. at 100. With the current motion, the movant has not met that burden. 
EAC 04 009 53707 
Page 4 
Finally, it should be noted for the record that, unless CIS directs otherwise, the filing of a motion to reopen or 
reconsider does not stay the execution of any decision in a case or extend a previously set departure date. 8 
C.F.R. 5 103.5(a)(l)(iv). 
The petition will remain denied and the appeal dismissed for the previously stated reasons, with each considered 
as an independent and alternative basis for the decision. In visa petition proceedings, the burden of proving 
eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. $ 1361. 
Here, that burden has not been met. 
ORDER: 
 The motion is rejected as untimely filed.