dismissed EB-1A Case: Dance And Choreography

U.S. Citizenship 
and Immigration 
Services 
In Re: 11105898 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date : OCT . 14, 2020 
Form 1-140, Immigrant Petition for Alien Worker (Extraordinary Ability) 
The Petitioner, a dancer and choreographer, seeks classification as an alien of extraordinary ability. 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 Nebraska Service Center denied the petition, concluding that the Petitioner had 
not satisfied any of the ten initial evidentiary criteria for this classification, of which she must meet at 
least three . The Petitioner appealed the matter and we dismissed the appeal. 1 The Petitioner 
subsequently filed a combined motion to reopen and reconsider, which we dismissed as untimely, 
followed by a second combined motion, which we also dismissed . 
On this third combined motion to reopen and reconsider, the Petitioner contends that our decision to 
dismiss her most recent motion was incorrect based on the controlling regulations. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. See 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the motion to reopen and the 
motion to reconsider. 
I. MOTION REQUIREMENTS 
To merit reopening or reconsideration, a petitioner must meet the formal filing requirements (such as, 
for instance, submission of a properly completed Form I-290B, Notice of Appeal or Motion, with the 
correct fee), and show proper cause for granting the motion . 8 C.F.R . § 103.5(a)(l) . 
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 we based our decision on an incorrect 
application of law or U.S. Citizenship and Immigration Services (USCIS) 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. 
1 See Matter of E-G-, ID# 1668798 (AAO Oct. 25, 2018). 
§ 103.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
II. ANALYSIS 
The primary issue in this matter is whether the Petitioner has established that our decision to dismiss 
her second combined motion to reopen and reconsider was based on an incorrect application of law or 
USCIS policy. 
A. Previous AAO Decisions 
The record reflects that we issued our initial decision dismissing the Petitioner's appeal on 
October 25, 2018. The Petitioner filed her first combined motion on Thursday, November 29, 2018, 
35 days after the decision was issued. A motion must be filed within 33 calendar days of the date 
USCIS served the unfavorable decision by mail. See 8 C.F.R. §§ 103.5(a)(l)(i), 103.8(b). When 
computing the period of time for filing an appeal or motion USCIS counts every calendar day 
(including Saturdays, Sundays, and legal holidays) starting the first calendar day after the date USCIS 
mailed the unfavorable decision. If the last day of the filing period falls on a Saturday, Sunday, or a 
legal holiday, the period to file an appeal runs until the end of the next day which is not a Saturday, 
Sunday, or legal holiday. See 8 C.F.R. § 1.2. 
Here, we informed the Petitioner that any motion to reopen and/or reconsider our appellate decision 
must be filed within 33 days of our decision dated October 25, 2018. The due date for the Petitioner's 
motion was Tuesday, November 27, 2018, and this date did not fall on a weekend or legal holiday. 
Accordingly, we dismissed the Petitioner's motion, filed on November 29, 2018, as untimely. 
In her second combined motion, the Petitioner alleged that our decision to dismiss her initial combined 
motion to reopen and reconsider as untimely was based on an incorrect application of law or policy. 
Specifically, she claimed: 
The 30th day of the filing fell on Saturday, November 24, 2018 . ... The next day which 
was not on Saturday, Sunday or a legal holiday was Monday, November 26, 2018 .... 
8 C.F.R. § 103.8(b) provides for 3 days for to respond by mail. This [motion] must have 
been received by Thursday, November 29, 2019. AAO confirmed in the Notice of Denial 
that it was received on November 29, 2019. ACCORDINGLY, THE MOTION TO 
REOPEN/RECONSIDER WAS SUBMITTED TIMELY WITHIN THE PERIOD 
PRESCRIBED BY THE REGULATIONS. 
(Emphasis in original). 
We dismissed the second motion, emphasizing that the due date applicable to the Petitioner's motion 
was Tuesday, November 27, 2018. We noted that the Petitioner had not cited to any source of authority 
in support of her assertion that we should not count the Saturday and Sunday preceding the last day of 
the relevant filing period. Accordingly, we concluded that the Petitioner had not identified the nature 
of our alleged legal error. 
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B. Motion to Reconsider 
In the brief submitted in support of the instant motion, the Petitioner states: 
In the dismissal, AAO cited to the controlling regulation, 8 e.F.R. § 1.2, which 
automatically established that its own dismissal decision was an error because the 
regulations mandated to roll the deadline to the next business day that was not a 
weekend or a holiday. The dismissal is therefore inconsistent with the code and is in 
error. 
The Petitioner, however, does not specify how we misapplied this regulation or other law or users 
policy in dismissing her second combined motion. 
The Petitioner's assertion that her initial motion to reopen and reconsider was due 35 days after the 
date of our appellate decision, on Thursday, November 29, 2018 is based on a misinterpretation of the 
relevant regulations. Specifically, she previously argued that since the regulation at 8 e.F.R. § 
103.5(a)(l) requires that motions be filed within 30 days, her motion was due on Saturday, November 
24. She further suggested that, since this due date was on a Saturday, her actual filing deadline was 
Monday, November 26. Finally, she indicated that 8 e.F.R. § 103.8(b) allowed her three additional 
days to file her motion, until Thursday, November 29, 2018. 
The regulation at 8 e.F.R. § 103.8(b) provides that whenever a person has the right or is required to 
do some act within a prescribed period after the service of a notice upon them and the notice is served 
by mail, 3 days shall be added to the prescribed period. Because we mailed the Petitioner's appellate 
decision, her prescribed period to submit a motion was automatically extended to 33 days. As a result, 
she was not required to file her motion within 30 days, and the last day of her prescribed filing period 
did not fall on Saturday, November 24, 2018. 
As noted, this 33-day filing period was clearly communicated to her when our appellate decision was 
issued, and the 33rd day fell on Tuesday, November 27, 2018. As the last day of the filing period did 
not fall on a Saturday, Sunday or legal holiday, there was no basis to "roll the deadline" and the 
regulation at 8 e.F.R. § 1.2 was not applicable to our evaluation of whether the Petitioner's initial 
motion was timely. Accordingly, the Petitioner has not demonstrated that we incorrectly applied this 
or any other regulation or users policy to the facts of her case or dismissed her previous combined 
motion in error. 
In our previous decision, we also noted that the Petitioner had cited to 8 e.F .R. § 1001.1 (h), which is 
applicable to appeals that fall under the jurisdiction of the Board of Immigration Appeals, rather than 
the nearly identical regulation at 8 e.F.R. § 1.2, which is applicable to appeals before our office. On 
motion, the Petitioner refers to a non-precedent decision, noting that "AAO has previously sustained 
matters relying on 8 e.F.R. § 1001.l(h)." The referenced decision was not published as a precedent 
and therefore does not bind users officers in future adjudications. See 8 e.F.R. § 103.3( c ). As discussed, 
the Petitioner in the matter did not have a prescribed filing period for her initial motion that ended on a 
Saturday, Sunday, or legal holiday, and neither the regulation at 8 e.F.R. § 1.2 or 8 e.F.R. § 1001.l(h) 
applies. 
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The Petitioner has not established that our decision to dismiss her second motion to reconsider was based 
on an incorrect application of law or USCIS policy. Accordingly, the motion to reconsider will be 
dismissed. 
C. Motion to Reopen 
Although the Petitioner indicates that she is concurrently filing a motion to reopen, she has not 
presented new facts or evidence for consideration in this proceeding and has not met the requirements 
of a motion to reopen at 8 C.F.R. § 103.5(a)(2). Accordingly, the motion to reopen will be dismissed. 
III. CONCLUSION 
For the reasons discussed, the Petitioner has not shown proper cause for reopening or reconsideration. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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