dismissed EB-1A Case: Chef

U.S. Citizenship 
and Immigration 
Services 
In Re: 19390244 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: DEC. 22, 2021 
Form I-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a chef, seeks classification as an individual of extraordinary ability. See Immigration 
and Nationality Act (the Act) section 203(b)(l)(A), 8 U.S.C. § l 153(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 Nebraska Service Center denied the petition, concluding that the record did not 
establish that the Petitioner bad satisfied at least three of ten initial evidentiary criteria, as required. 
The Petitioner filed a combined motion to reopen and reconsider that decision. The Director granted 
the motion and again denied the petition. The Petitioner appealed that decision to us, and we dismissed 
the appeal. 
The Petitioner contested our appellate decision in a filing which he, at various times, called both an 
appeal and a combined motion to reopen and reconsider. We dismissed the Petitioner's filing as 
untimely . The matter is now before us on another combined motion to reopen and reconsider. Upon 
review, we will dismiss the combined motion. 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must 
state the reasons for reconsideration , identify errors of law or U.S. Citizenship and Immigration 
Services (USCIS) policy, and establish that the decision was incorrect based on the evidence ofrecord 
at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). 
The regulation at 8 C.F.R. § 103.5(a)(l)(i) limits our authority to reopen or reconsider to instances 
where the Petitioner has shown "proper cause" for that action. Thus, to merit reopening or 
reconsideration , a petitioner must not only meet the formal filing requirements (such as submission of 
a properly completed Form I-290B, Notice of Appeal or Motion, with the correct fee), but also show 
proper cause for granting the motion. We cannot grant a motion that does not meet applicable 
requirements. See 8 C.F.R. § 103.5(a)(4). 
We dismissed the Petitioner's appeal on April 28, 2020. On July 30, 2020, the Petitioner filed Form 
I-290B to contest our decision. 
On June 2, 2021, we dismissed the Petitioner's filing as untimely, stating: 
We are dismissing your Form I-290B, Notice of Appeal or Motion, because it was 
untimely filed. You must file a motion on an unfavorable decision within 33 calendar 
days of the date we mailed the decision. 8 C.F.R. § 103.S(a)(l), 103.8(b). As well, on 
March 30, 2020, USCIS issued Leadership Guidance providing flexibility allowing up 
to 60 days from the date of the decision for the submission of a Form I-290B. 1 On 
April 28, 2020, we mailed the unfavorable decision to you. Your Form I-290B was 
received at the designated filing location on July 30, 2020, which is 93 days after the 
decision. 
On motion, the Petitioner states: "As a result of COVID-19 restrictions, USCIS has created guideline 
flexibility in responding to certain requests. The guidelines state[]: 'USCIS will consider a response 
to the above requests and notices received within 60 calendar days after the response due date set in 
the request or notice before taking action."' The Petitioner asserts that this guidance added 60 days to 
the motion's original filing deadline of May 30, 2021, and that, therefore, his July 30, 2021 filing was 
timely. 
The March 2020 Leadership Guidance, however, added 60 days to the response time for "certain 
Requests for Evidence (RFE) and Notices oflntent to Deny (NOID)" and similar requests and notices. 
The same guidance also specified: "Any Form I-290B received up to 60 calendar days/ram the date 
of the decision will be considered by USCIS before it takes any action" (emphasis added). Subsequent 
extensions likewise specified the same period of 60 days from the date of the decision; it did not add 
60 days to the existing filing period. 2 We note that Form I-290B is not a "response" to a notice or 
request, representing continuing action in the context of an existing benefit request. Rather, it is a 
filing which initiates a new stage in the proceeding, requiring its own decision or other disposition. 
USCIS guidance separately refers to the Form I-290B timeframe. 
For the above reasons, the Petitioner has not shown that we erred by dismissing his July 2021 filing 
as untimely. 
When the Petitioner filed Form I-290B in July 2020, he indicated that a supplement would follow. 
We received the supplemental filing on August 12, 2020. After taking these actions, the Petitioner 
indicated in March 2021 that he intended the filing to be a combined motion to reopen and reconsider, 
rather than an appeal. 
While the regulations permit a petitioner to supplement an appeal that has already been filed, there is 
no similar provision for motions. Rather, a motion to reconsider must be complete "when filed." See 
8 C.F.R. § 103.5(a)(3). With respect to motions to reopen, the regulations acknowledge that new facts, 
which warrant a motion to reopen, may arise after the deadline to file a timely motion. Rather than 
allowing a placeholder filing followed by a supplement, however, the regulation at 8 C.F.R. 
1 See "'USCIS Expands Flexibility for Responding to USCIS Requests," https://www.uscis.gov/news/alerts/uscis-expands­
flexibility-for-responding-to-uscis-requests. 
2 See https://www.uscis.gov/news/alerts for a searchable database that includes periodic extensions of the flexibility period. 
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§ 103.5(a)(l)(i) gives us discretion to accept an untimely motion to reopen "where it is demonstrated 
that the delay was reasonable and was beyond the control of the applicant or petitioner." Here, the 
Petitioner has not established any reasonable delay, beyond his control, that prevented him from filing 
the motion to reopen within the 60 days permitted by the USCIS Leadership Guidance. 
The Petitioner states, in his current motion, that he "reiterated his excusable delay," but the July 2020 
filing included no explanation or acknowledgment of the delay in filing. 
For the above reasons, the Petitioner's August 2020 supplement was not properly incorporated into 
the filing of a motion to reopen or a motion to reconsider. 
Finally, the Petitioner's latest filing includes arguments regarding the merits of his underlying petition, 
and disputing the conclusions in our April 2020 appellate decision. By regulation, a motion is limited 
to "the prior decision" in the proceeding. See 8 C.F.R. § 103.5(a)(l)(i). Our April 2020 decision did 
not address the merits of the petition; it was limited to the procedural issue of timeliness. Therefore, 
any assertions of error with regard to the merits would not constitute grounds for reconsideration. 
For the reasons discussed, the Petitioner has not shown proper cause for reconsideration and has not 
overcome the grounds for dismissal of the prior motion. We will therefore dismiss the motion to 
reconsider. 
We will also dismiss the motion to reopen. The Petitioner cites, and quotes, the regulation at 8 C.F.R. 
§ 103.5(a)(2), which requires the Petitioner to state new facts, but the Petitioner has not stated any new 
facts. Instead, the motion rests on procedural arguments. The Petitioner also resubmits the brief and 
exhibits that he submitted in August 2020, but these materials were already in the record and do not 
represent new facts or new evidence. The Petitioner's latest filing does not meet the requirements of 
a motion to reopen, and therefore we must dismiss that motion. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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