dismissed EB-1B Case: Education

~dentifyi!1g data deleted to 
prevent clearlY unwarranted 
invasion of personal privacy 
PUBLICCOPV 
Date: Office: TEXAS SERVICE CENTER 
NAY 1 ~ 2012 
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: 
PETITION: Immigrant Petition for Alien Worker as Outstanding Professor or Researcher Pursuant to 
Section 203(b)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(B) 
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 law was inappropriately applied by us in reaching our decision, or you have additional 
information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. 
The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be 
submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or 
Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires that any motion must 
be filed within 30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
PerryRbew 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant 
visa petition. The Administrative Appeals Office (AAO) rejected a subsequent appeal as untimely. 
The AAO granted a subsequent motion to reopen/reconsider and affirmed the previous decision of 
the AAO. The matter is now before the AAO on a second motion to reopen/reconsider. The 
motion will be granted, the previous decision of the AAO will be affirmed, and the petition will 
remain denied. 
The petitioner is a community development organization. It seeks to classify the beneficiary as 
an outstanding professor or researcher pursuant to section 203(b)(1 )(B) of the Immigration and 
Nationality Act (the Act), 8 U.S.C. § 1153(b)(1)(B). The petitioner seeks to employ the 
beneficiary permanently in the United States as a professor. The director determined the 
petitioner had not established that the beneficiary had attained the outstanding level of achievement 
required for classification as an outstanding researcher or professor and that the petitioner was a 
qualifying private employer. The AAO rejected the subsequent appeal as untimely filed. The AAO 
granted a subsequent motion to reopen and affirmed the previous decision of the AAO. The 
petitioner has filed a second motion to reopen/reconsider. 
On motion, counsel does not contest the AAO's finding that the appeal was untimely. Counsel 
alleges ineffective assistance of prior counsel in failing to timely file the appeal with the proper fee. 
It is noted that any appeal based upon a claim of ineffective assistance of counsel requires: (1) 
that the claim be supported by an affidavit of the allegedly aggrieved respondent setting forth in 
detail the agreement that was entered into with counsel with respect to the actions to be taken 
and what representations counsel did or did not make to the respondent in this regard, (2) that 
counsel whose integrity or competence is being impugned be informed of the allegations leveled 
against him and be given an opportunity to respond, and (3) that the appeal or motion reflect 
whether a complaint has been filed with appropriate disciplinary authorities with respect to any 
violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 
I&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (1st Cir. 1988). The petitioner has not submitted 
any of the required documentation to support an appeal based on ineffective assistance of 
counsel. Therefore, the applicant is found not to have established a claim of ineffective 
assistance of counsel. 
A motion to reopen must state the new facts to be proven in the reopened proceeding and, when 
filed, be supported by affidavits or other documentary evidence.1 8 C.F.R. § 103.5(a)(2). A 
1 Accompanying the motion, the petitioner has submitted additional evidence in support of the beneficiary's 
eligibility pursuant to section 203(b)(I)(B) of the Act as follows: a book published by the beneficiary in 2009; press 
releases about that book; course materials authored by the beneficiary for a course taught in 2010 and student 
compositions from that course written in 2010 and 2011; and, a letter of recommendation from the director of the 
petitioner's school of practical nursing, where the beneficiary is a faculty member. However, the submitted 
evidence is not relevant to the AAO's reason for rejecting the appeal. In addition, regarding the beneficiary'S book, 
the related press releases and the course materials, they are not relevant to the issue of the beneficiary's eligibility 
for the benefit sought; these events occurred after October 11,2007, the date of filing the employment-based immigrant 
visa petition, and cannot be considered evidence of the beneficiary's eligibility after that date. See 8 C.F.R. 
§ 103.2(b)(12); Matter ofKatigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). Further, regarding the remaining letter of 
· ' 
Page 3 
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 
Service policy. A motion to reconsider a decision on an application or petition must, when filed, 
also establish that the decision was incorrect based on the evidence of record at the time of the 
initial decision. 8 C.F.R. § 103.5(a)(3). A motion that does not meet the applicable requirements 
when filed shall be dismissed. 8 C.F.R. § 103.5(a)(4). 
In this case, we concur with our prior decision that the appeal was untimely, and the untimely 
appeal did not meet the requirements of a motion to reopen or a motion to reconsider when it was 
filed. Therefore, our prior decision will be affirmed. 
ORDER: The AAO's decision of February 23,2010 is affirmed. The petition will remain denied. 
reference, it is noted that on October 8, 2008, the director issued a Request for Evidence (RFE). The RFE instructed 
the petitioner to submit evidence of the applicant's eligibility pursuant to section 203(b)(1 )(B) of the Act. In 
denying the application, the director concluded that the documents submitted in response to the RFE were not 
sufficient to establish that the applicant's eligibility. On appeal, the applicant did not submit any additional evidence 
previously requested by the director in the RFE. The purpose of the RFE is to elicit further information that clarifies 
whether eligibility for the benefit sought has been established, as of the time the application is filed. See 8 C.F.R. 
§§ 103.2(b)(8) and (12). The failure to submit requested evidence that precludes a material line of inquiry shall be 
grounds for denying the application. 8 C.F.R. § 103.2(b)(14). As in the present matter, where an applicant has been 
put on notice of a deficiency in the evidence and has been given an opportunity to respond to that deficiency, the 
AAO will not accept evidence offered for the first time on appeal. See Matter of Soriano, 19 I&N Dec. 764 (BIA 
1988); Matter of Ohaigbena, 19 I&N Dec. 533 (BIA 1988). If the applicant had wanted the submitted evidence to 
be considered, it should have submitted the documents in response to the director's request for evidence. ld. Under 
the circumstances, the AAO need not, and does not, consider the sufficiency of the evidence submitted with the 
motion. Regardless, the AAO notes that the letter of reference does not identify an original research contribution 
made by the beneficiary to the academic field as a whole, or provide evidence of his recognition beyond his own circle 
of collaborators.