dismissed EB-1A Case: Unknown

(b)(6)
Date: OCT 2 1 2013 Office: NEBRASKA SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W. , MS 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
APPLICATION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to 
Section 203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. 
§ 1153(b )(l)(A). 
ON BEHALF OF APPLICANT: 
SELF-REPRESENTED 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively . Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form I-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.P.R.§ 103.5. Do not file a motion directly with the AAO. 
Thank you, 
X:?f-
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant 
visa petition on May 10, 2011. While the matter was before the Administrative Appeals Office 
(AAO) on appeal, on April 9, 2012, the petitioner, who is also the beneficiary, requested that the 
appeal be withdrawn. On May 25, 2012, the AAO dismissed the petitioner's appeal based on the 
withdrawal request. On November 26, 2012, the petitioner filed the instant motion, requesting that 
the matter be reopened. The petitioner's motion will be dismissed. 
I. Untimely Motion 
In order to properly file a motion to reopen, 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.P.R. § 103.2(a)(7)(i). The regulation at 8 C.P.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. 
The AAO dismissed the petitioner's appeal on May 25, 2012. The decision was served on the 
petitioner via first-class mail on the same day. The petitioner dated the Notice of Appeal or Motion, 
Form l-290B, November 24, 2012. The United States Citizenship and Immigration Services 
(USCIS) received the Form I-290B and accompanying documents on November 26, 2012, six 
months after the AAO's dismissal of the petitioner's appeal. In addition, the petitioner has not 
demonstrated that the delay was either reasonable or was beyond his control, as required under the 
regulation at 8 C.F.R. § 103.5(a)(1)(i). Accordingly, the motion is dismissed as untimely filed. 
II. Requirements of a Motion 
The regulation at 8 C.P.R. § 103.,5(a)(1)(iii) informs the public of the filing requirements for a 
motion and provides in subsection (C) that a motion shall be submitted on Form I-290B and it 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." 
On motion, the petitioner has not submitted a statement indicating if the validity of the AAO's May 
25, 2012 decision has been.or is the subject of any judicial proceeding pursuant to the regulation at 
8 C.P.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, the motion is dismissed 
pursuant to the regulation at 8 C.F.R. § 103.5(a)(4) without regard to the claims contained within the 
motion. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
III. Motion to Reopen 
A party seeking to reopen a proceeding bears a heavy burden and "must state the new facts to be 
provided in the reopened proceeding and be supported by affidavits or other documentary evidence." 
8 C.F.R. § 103.5(a)(2). In other words, in filing a motion to reopen, the petitioner seeks a new 
hearing based on new or previously unavailable evidence. See Matter of Cerna, 20 I&N Dec. 399, 
403 (BIA 1991). Based on its discretion, "the INS [now the USCIS] has some latitude in deciding 
when to reopen a case. [USCIS] should have the right to be restrictive. Granting such motions too 
freely will permit endless delay of deportation by aliens creative and fertile enough to continuously 
produce new and material facts sufficient to establish a prima facie case." INS v. Abudu, 485 U.S. 
94, 108 (1988). The result also needlessly wastes the time and efforts of the triers of fact who must 
attend to the filing requests. Id. 
On motion, the petitioner seeks to retract his appeal withdrawal request, noting that he had made the 
request because "a mistake [was] made by either USCIS or USCIS info translation." Specifically , he 
asserted that he made the withdrawal request based on the suggestion of Mr. Special 
Assistant of 
The regulation at 8 C.F.R. § 103.2(b)(6) provides: "An applicant or petitioner may withdraw an 
benefit request at any time until a decision is issued by USCIS or, in the case of an approved 
petition, until the person is admitted or granted adjustment or change of status, based on the petition. 
However, a withdrawal may not be retracted." (Emphasis added.) Accordingly, the petitioner has 
not stated new facts to be provided in the reopened proceeding or shown that a new hearing should 
be granted based on new or previously unavailable evidence. See Matter of Cerna, 20 I&N Dec. at 
403; see also 8 C.F.R. § 103.5(a)(2). Accordingly, the motion is dismissed. 
The motion to reopen will be dismissed for the above stated reasons, with each considered as an 
independent and alternate basis for the decision. 
ORDER: The motion is dismissed, the decision of the AAO dated May 25, 2012 is affirmed, 
the appeal remains dismissed and the petition remains denied.