dismissed EB-2 Case: International Business

(b)(6)
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 
DATE: JUN 0 7 2013 OFFICE: NEBRASKA SERVICE CENTER FILE: 
INRE: Petitioner : 
Beneficiary: 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability pursuant to section 203(b )(2) of the Immigration and 
Nationality Act, 8 U.S .C. § 1153(b)(2) 
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 I-290B, Notice of Appeal or Motion , with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R . § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
on Rosenberg 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The employment-based· immigrant visa petitiOn was denied by the Director, 
Nebraska Service Center (Director). The petitioner appealed this decision to the Administrative 
Appeals Office (AAO), and, on January 29, 2013, the AAO dismissed the appeal. The petitioner 
filed an appeal of the AAO's decision. The appeal will be dismissed pursuant to 8 C.F.R. 
§§ 103.3(a)(l)(ii), 103.5(a)(1)(i), 103.5(a)(3), and 103.5(a)(4). 
United States Citizenship and Immigration Services (USCIS) regulations provide for appeals of 
unfavorable decisions. See 8 C.F.R. §§ 103.3(a)(1)(ii), 103.3(a)(l)(iv) (defining the jurisdiction of 
the Board of Immigrations Appeals and the AAO, respectively). The AAO does not exercise 
appellate jurisdiction over its own decisions. The AAO exercises appellate jurisdiction over only the 
matters described at 8 C.F.R. § 103.1(f)(3)(iii) (as in effect on February 28, 2003). See DHS 
Delegation Number 0150.1 (effective March 1, 2003). An appeal of an AAO appeal is not properly 
within the AAO's jurisdiction. 
USCIS regulations permit a petitioner to request that a decision by the AAO be reopened and 
reconsidered. 8 C.F.R. § 103.5(a). Motions to reopen or reconsider be filed within 30 days of the 
underlying decision. 8 C.F.R. § 103.5(a)(1)(i). The petitioner's brief and any evidence must be filed 
within 30 days of the underlying decision. !d. There is no provision in the statute or regulations 
permitting the AAO to extend that deadline. Cf 8 C.F.R. § 103.3(a)(2)(vii) (permitting the AAO to 
allow, for good cause shown, additional time to submit a brief). 
In this matter, the AAO dismissed the petitioner's appeal on January 29, 2013. On February 25, 
2013, counsel for the petitioner submitted Form I-290B, Notice of Appeal or Motion, noting that it 
was "filing an appeal" by checking box "B" in Part 2 of that form. Part 2 of the Form is titled as 
"Appeal for [the beneficiary]." Part 3 of the form, "Basis for the Appeal or Motion," contains only 
one sentence, which reads, "Brief and Supporting documents will be submitted to the AAO within 
30 days." The form is signed by the petitioner's president. Form I-2908 was accompanied by a 
Form G-28, Notice of Entry of Appearance as Attorney, as well as a letter from counsel, dated 
February 22, 2013. Counsel's letter states in pertinent part: 
The Administrative Appeals Office (NSC) denied the I-140 petition on January 29, 
2013. At this time we are submitting a request to appeal the decision. The petitioner 
is currently gathering additional evidence to address the concerns of the AAO. We 
are now submitting our request for an appeal and the supporting documents will be 
submitted to the AAO within 30 days. 
On March 28, 2013, 31 days after the AAO's decision, counsel for the petitioner submitted its brief 
and supporting documents. 1 
1 In its appeal, the petitioner has submitted a brief and provided copies of the AAO decision, two 
credentials evaluation reports already submitted, information from the 
a letter from the information on 1 
the beneficiary's undergraduate diploma and transcript, and the ETA Form 
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The appeal shall be dismissed for failing to meet applicable requirements. As no appeal lies from 
the AAO's decision, and as the petitioner's filing does not meet the requirements for a motion to 
reopen or a motion to reconsider, it must be dismissed. A motion must meet the regulatory 
requirements of a motion to reopen or reconsider at the time it is filed; no provision exists for users to 
grant an extension to the petitioner to file evidence or arguments in the future. The fact that the 
petitioner on the Form I-290B incorrectly checked box B ("I am filing an appeal. My brief and/or 
additional evidence will be submitted to the AAO within 30 days"), does not permit the petitioner to 
submit evidence beyond the 30 day period allowed for motions to reopen or reconsider. 8 C.F .R. 
§ 103.5(a)(l)(i). 
The AAO notes that, even if the petitioner had properly submitted a motion within the time 
permitted by regulation, the brief and evidence provided as of March 28, 2013, would be insufficient 
to grant the 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). 
Counsel's brief does not state new facts, therefore, it would not meet the requirements for a motion 
to reopen. 
A motion to reconsider must: (1) 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 users policy; and (2) 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). As the AAO noted in its January 
29, 2013 decision, the beneficiary's degree from 
California, though called a "Master of Science in International Business," does not qualify as a U.S. 
master's degree under the "advanced degree" definition of 8 C.F.R. § 204.5(k)(2) because it was not 
awarded by an educational institution that has been accredited by a regional accrediting agency 
recognized by the Department of Education and Council for Higher Education Accreditation. The 
AAO also noted that the beneficiary does not have a foreign educational equivalent to a master's 
degree in business administration or international business. 
In his brief, counsel contends that the beneficiary has a Master's Degree in International Business 
from _ ; the position offered requires a Master's Degree in Business 
Administration or International Business; 8 C.F.R. § 204.5(k) does not explicitly state that a degree 
must be from an accredited college or university to qualify as an "advanced degree" rather it requires 
that 
that the degree be above that of a baccalaureate; the AAO states that the modifier "United 
States" to describe the different levels of degrees makes clear the intention of the rule makers that 
the regulations apply to degrees issued by U.S. education institutions that are recognized and 
honored on a nationwide basis; the use of the modifier "United States" to describe the degree is 
referring to non-foreign degrees as opposed to foreign degrees; the modifier "United States" must 
not bear further meaning in regard to the accreditation of the universities in question; 
is a United States university; federal and state descriptions of approval 
requirements for accreditation are similar; users may not consider the quality of the beneficiary's 
9089 with approval letter. All of these documents were already submitted. The only new 
submission in the petitioner's second appeal is counsel's brief. 
(b)(6)Page 4 
education as a requirement of a labor certification and visa petition; and 
is authorized to issue I-20 Forms for F-1 student visas, therefore USCIS should be 
estopped from rejecting the beneficiary's degree as it has accepted the same university for other visa 
applications. 
Counsel does not cite to any precedent decisions in any of the foregoing claims, and his contentions 
are not supported by any pertinent precedent decisions to establish that the decision was based on an 
incorrect application of law or USCIS policy. As such, the petitioner's second appeal would not 
meet the requirements for a motion to reconsider. 
Motions for the reopening or reconsideration of immigration proceedings are disfavored for the same 
reasons as petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. 
See INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485 U.S. 94 (1988)). A party 
seeking to reopen a proceeding bears a "heavy burden." INS v. Abudu, 485 U.S. at 110. With the 
current matter, the petitioner has not met that burden. The appeal will be dismissed. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. § 1361. The petitioner has not sustained that burden. Accordingly, the appeal will be 
dismissed, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The appeal is dismissed.