dismissed E-2 Case: Construction Management And Interior Design

U.S. Citizenship 
and Immigration 
Services 
In Re: 12661695 
Motion on Administrative Appeals Office Decision 
Form 1-129, Petition for Nonimmigrant E-2 Treaty Investor 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : JAN. 21, 2021 
The Petitioner, a construction management and interior design company, seeks to extend the 
Beneficiary's E-2 nonimmigrant status as a treaty investor under section 101(a)(15)(E)(ii) of the 
Immigration and Nationality Act (the Act), 8 U.S.C. § 1101(a)(15)(E)(ii). 
The Director of the California Service Center denied the Form 1-129, Petition for a Nonimmigrant 
Worker, because it was filed over one and a half years after the Beneficiary 's E-2 status had expired 
and the Petitioner did not establish eligibility for a favorable exercise of discretion to excuse the delay. 
The Director certified the decision for us to review and address the Petitioner 's claim that the delay 
was due to ineffective assistance of prior counsel. We affirmed the Director 's decision , concluding 
that the Beneficiary did not demonstrate that her personal challenges and ignorance of the law 
constituted extraordinary circumstances that were beyond her control and that her delay in filing was 
commensurate with any such circumstances , as required by 8 CFR 214 .l(c)(4)(i). The matter is now 
before us on a motion to reconsider. 
Upon review, we conclude that the Petitioner has not met the requirements of a motion to reconsider. 
Therefore, we will dismiss the motion. 
I. REQUIREMENTS FOR A MOTION TO RECONSIDER 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy , and that the decision 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). We may grant a motion that satisfies these requirements 
and demonstrates eligibility for the requested immigration benefit. 
II. ANALYSIS 
In support of the instant motion, the Petitioner asserts that our decision was incorrect because we: 
(1) used an incorrect definition of"extraordinary circumstances beyond the control of the applicant or 
petitioner"; (2) relied on "inconsistent regulations and procedures promulgated by the Department of 
State and Department of Homeland Security"; and (3) "misconstrued the facts" without adequately 
considering the Petitioner's argument that its delay in filing the application for an extension of the 
Beneficiary's stay was not "commensurate with the circumstances." 
First, the Petitioner objects to our reliance on definitions that were adopted by the Department of 
Homeland Security (DHS) in the asylum context, asserting that comparing a missed deadline to file 
an E-2 extension to a missed deadline for filing an asylum application "substantially distorts the 
analysis" and results in the creation of a "rigid standard" which should not apply where there is no 
"permanent effect." The Petitioner argues that we should instead use "a common sense evaluation of 
the facts and circumstances ... commensurate with the benefit sought," contending that because the 
benefit sought in this instance is of a temporary nature, we should have applied "a lower standard than 
the asylum waiver requirement." The Petitioner does not, however, cite to a pertinent precedent or 
adopted decision, statutory or regulatory provision, or statement of U.S. Citizenship and Immigration 
Services (USCIS) or DHS policy that either identifies such a standard or supports the contention that 
a "lower standard" should have been applied in the present matter. 8 C.F.R. § 103.5(a)(3). Moreover, 
and significantly, 8 C.F .R. § 214.1 ( c )( 4) places no limitation or constraint on how USCIS may exercise 
its discretionary authority, nor does it establish different standards for when it may excuse a late filing. 
Importantly, this regulation does not mandate or require the agency to excuse a late filing at all, even 
if the requirements of 8 C.F.R. § 214. l(c)(4)(1) are satisfied, but merely provides that the agency may, 
in its discretion, after considering the circumstances and the stated reason for the delayed filing, excuse 
a late filed request for extension of stay. 
In this case, however, the Petitioner failed to satisfy 8 C.F.R. § 214.l(c)(4)(1). Although the Petitioner 
argues that we "misconstrued the facts" when we determined that the delay in filing was not 
commensurate with the circumstances, it does not point to the facts that we "misconstrued" and does 
not cite any legal authority to support its argument. Rather, the Petitioner merely restates the facts 
that were fully discussed in our prior decision and reasserts the claim that the delay in filing "was 
commensurate with the circumstances," basing this claim largely on prior counsel's alleged failure to 
inform the Beneficiary that her status had expired. This claim was considered and fully addressed in 
our prior decision and the Petitioner has not provided evidence showing that the facts it presented 
warranted a favorable disposition. 
Finally, although the Petitioner appears to question the lawfulness of the regulations and procedures 
promulgated by the Department of State and Department of Homeland Security pertaining to the filing 
deadlines of an E-2 extension, in particular, that DHS's regulations conflict with those of DOS, it 
offers no legal authority for the argument. The AAO's decision is premised upon our proper 
application of DHS provisions that are binding on all USCIS employees. "The granting of a visa and 
the granting of admission to the United States are distinct acts undertaken by distinct agencies, the 
Department of State for visas and the Department of Homeland Security for admission." Buddhi v. 
Holder, 344 F. App'x 280, 284 (7th Cir. 2009) (unpublished). As noted in our previous decision, the 
visa validity period governs the time during which an alien may travel to and seek admission to the 
United States and "has no relation to the period of time the [DHS] immigration authorities at a port of 
entry may authorize the alien to stay in the United States." Compare 22 C.F.R. § 41.112(a) with 
8 C.F.R. §§ 214.l(c)(l), 214.2(e)(20). 
To the extent that the Petitioner challenges the validity of the statutory or regulatory scheme governing 
this matter, the AAO's jurisdiction is limited to that specifically granted by the Secretary of the 
2 
Department of Homeland Security. See, e.g., DHS Delegation Number 0150.1 (effective March 1, 
2003); 8 C.F.R. § 2.1. Specifically, our jurisdiction is limited to those matters described at 8 C.F.R. 
§ 103.l(f)(3)(E)(iii), as in effect on February 28, 2003. Accordingly, we have no authority to assess 
the lawfulness of a regulation. 
In sum, we conducted a thorough review of the totality of the evidence before us and the Petitioner's 
stated reason for the delay in requesting the extension of stay and have determined that the Petitioner's 
contention that we erred in affirming the Director's decision is not supported by the record. 
In light of the above, we conclude that the Petitioner's motion does not warrant reconsideration. 
ORDER: The motion to reconsider is dismissed. 
3