dismissed EB-1A Case: Unknown

identifying data deleted to 
prevent clearly unwarranted 
invasion of personal privacy 
PUBUCCOPY 
DATE: jUl 2'3 1012 OFFICE: TEXAS SERVICE CENTER 
IN RE: PETITIONER: 
BENEFICIARY: 
U.S. Department of Uomcland Security 
U.S. Citizenship and Immigration Services 
Administralive ApPt'ill~ OtficL' (AAO) 
20 Massachusclls Ave" N.\\'., MS 20')f) 
WashinQlOn. DC 2052(J-2()()O 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b )(1 )(A) of the Immigration and Nationality Act, 8 U.s.c. § JJ53(b)( I )(A) 
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 1-290B, Notice of Appeal or Motion, with a fcc of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § !O3.5. 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, 
;t32f-
Perry Rhew 
Chief, Administrative Appeals Office 
wwwouscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition on March 24, 2011. On appeal, the Administrative Appeals Office (AAO) found 
that the petitioner did not meet his burden of establishing eligibility for the benefit sought and 
dismissed his appeal on July 11,2011. The matter is now before the AAO on a motion to reopen 
and reconsider, filed on August 16, 2011. The motion will be dismissed. The previous decision 
of the AAO will be affirmed, and the petition will remain denied. 
In order to properly file a motion to reopen or reconsider, the regulation at 8 C.F.R. 
§ 103.5(a)(1)(i) provides that the motion must be filed within 30 days of the unfavorable decision 
that the motion seeks to reopen. If the decision was mailed, the motion must be filed within 33 
days. See 8 C.F.R. § 103.8(b). The regulation at 8 C.F.R. § 1.2 explains that when the last day 
of a period falls on a Saturday, Sunday, or legal holiday, the period shall run until the end of the 
next day that is not a Saturday, Sunday, or legal holiday. The date of filing is not the date of 
submission, but the date of actual receipt with the proper signature and the required fee. See 
8 C.F.R. § 103.2(a)(7)(i). The regulation at 8 C.F.R. § 103.5(a)(1)(i) further provides that if the 
petitioner fails to file a motion to reopen before the prescribed period expires, the AAO may, in 
its discretion, excuse the delay if the petitioner shows that the delay was reasonable and was 
beyond his or her control. Furthermore, under the regulation at 8 C.F.R. § 103.5(a)(1)(iii)(C), a 
motion must be "[a]ccompanied by a statement about whether or not the validity of the 
unfavorable decision has been or is the subject of any judicial proceeding and, if so, the court, 
nature, date, and status or result of the proceeding." Finally, the regulation at 8 C.F.R. 
§ 103.5(a)(4) requires that "[a] motion that does not meet applicable requirements shall be 
dismissed." 
In this case, the record indicates that the AAO issued the unfavorable decision on July 11,2011. 
The decision was served on counsel via first-class mail on July 11, 2011. The AAO properly 
provided notice to the petitioner that the specific requirements for filing a motion to reopen can 
be found under the regulation at 8 C.F.R. § 103.5 and that the petitioner could tile a motion "to 
the otlice that originally decided" the case. 
Counsel dated the Notice of Appeal or Motion, Form I-290B, August 9, 2011 and submitted the 
motion directly to the AAO on August 10, 2011. The AAO returned the filing, advising that the 
AAO does not accept fees and providing the correct address. The Texas Service Center received 
the motion along with the required fee on Tuesday, August 16, 2011. In other words, USCIS did 
not receive the properly filed motion until 36 days after the unfavorable decision was issued. 
Moreover, counsel has failed to demonstrate in his letters to the AAO dated August 9, 2011, 
October 3, 2011 and November 15, 2011 that the delay was either reasonable or was beyond the 
control of the petitioner, as required under the regulation at 8 C.F.R. § 103.5(a)(1)(i). 
Accordingly, the motion was untimely filed. 
Furthermore, counsel has failed to submit a statement indicating if the validity of the AAO's July 
11, 2011 unfavorable decision has been or is the subject of any judicial proceeding pursuant to 
the regulation at 8 C.F.R. § 103.5(a)(1)(iii)(C). The regulation at 8 C.F.R. § 103.5(a)(4) requires 
that "[a] motion that does not meet applicable requirements shall be dismissed." Accordingly, 
Page 3 
the motion must also be dismissed pursuant to 8 C.F.R. § 103.5(a)(4) without regard to the 
claims contained within the motion. 
Finally, 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). 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 afCerna, 20 I&N Dec. 399,403 (BIA 1991). 
The August 16, 2011 filing references new evidence that the petitioner will submit on a future 
date. A motion must meet the requirements of a motion at the time of filing. At the time .of 
filing, the petitioner had submitted a personal statement and evidence that postdates the filing of 
the petition and, thus, cannot establish eligibility as of that date. See 8 C.F.R. §§ 103.2(b )(1), 
(12); Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971). The August 16, 2011 filing 
also fails to identify an incorrect application of law or policy. Thus, the filing does not constitue 
a motion to reopen or reconsider. 
In conclusion, the motion to reopen and reconsider is dismissed because the petitioner has failed 
to file it timely, because the petitioner has failed to submit a statement regarding any judicial 
proceeding relating to the validity of the AAO's July 11, 2011 unfavorable decision and because 
the filing did not meet the requirements of a motion as of the date of filing. 
ORDER: The motion is dismissed.