dismissed EB-2 Case: Unknown

(b)(6)
DATE: DEC 1 9 2013 OFFICE: TEXAS 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: 
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)(A) of the 
Immigration and Nationality Act, 8 U.S.C. § 1153(b)(2)(A) 
ON BEHALF OF PETITIONER: 
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.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
t't~( (-;, fo~~osenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center (director), denied the immigrant visa petition. 
The Administrative Appeals Office (AAO) dismissed the petitioner's appeal. After granting the 
petitioner's motion to reconsider, the AAO again dismissed the appeal on its merits. The petitioner 
filed a motion to reopen and reconsider, which the AAO dismissed as untimely and improperly filed. 
The petitioner now files another motion to reconsider. The motion will be dismissed pursuant to the 
regulations at 8 C.F.R. §§ 103.5(a)(1)(i), 103.5(a)(1)(iii)(C), and 103.5(a)(4). 
A petitioner must file a motion to reconsider within 33 days of an adverse decision sent by ordinary 
mail. 8 C.F.R. §§ 103.5(a)(1)(i), 103.8(b ). In the instant case, the petitioner filed the current motion 
to reconsider on October 1, 2013, 35 days after the AAO dismissed the petitioner's motion to reopen 
and reconsider on August 27, 2013. The record shows that the AAO mailed its August 27, 2013 
decision to the petitioner at its business address and to counsel of record. Therefore, the petitioner's 
current motion is untimely and must be dismissed for that reason. 
Furthermore, 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." 8 C.F.R. § 
103.5(a)(1)(iii)(C). A motion that does not meet applicable requirements must be dismissed. 8 
C.F.R. § 103.5(a)(4). In the instant case, a statement of judicial proceedings does not accompany the 
petitioner's motion. Therefore, the petitioner's motion must also be dismissed for failing to meet the 
requirements of the regulation at 8 C.F.R. § 103.5(a)(1)(iii)(C). 
Even if the petitioner had timely and properly filed the instant motion, the AAO would have 
dismissed it. The motion asserts that the petitioner timely filed its motion to reopen and reconsider 
on June 25, 2013. Counsel claims that he did not receive the AAO's May 22, 2013 decision, which 
granted the petitioner's previous motion to reconsider but dismissed its appeal, until May 26, 2013. 
Counsel misinterprets USCIS regulations. The applicable regulation measures the period of time in 
which to file a motion from the date of the adverse decision, not from the date of the adverse 
decision's receipt. See 8 C.F.R. § 103.5(a)(1) (a petitioner must file a motion "within 30 days of the 
decision that the motion seeks to [reopen and/or reconsider]") (emphasis added); cf, e.g., 8 C.F.R. § 
103.3(a)(2)(iii) ("Within 45 days of receipt ofthe appeal," a USCIS officer may treat an appeal as 
motion and take favorable action.) (emphasis added). 
Also, counsel's assertion does not establish that he received the AAO's May 22, 2013 decision on 
May 26, 2013. See Matter of Obaigbena, 19 I&N Dec. 533, 534 (BIA 1988); Matter of Ramirez­
Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (the assertions of counsel do not constitute evidence). Nor 
does counsel address the improper filing of the previous Form I-290B, whereby counsel checked box 
2.B on the form indicating that the filing was an appeal.1 Because the petitioner's current motion does 
1 
The AAO lacks appellate jurisdiction over its own decisions. The AAO exercises appellate 
jurisdiction over only the matters described at former 8 C.F.R. § 103.1(f)(3)(iii), as in effect on 
February 28, 2003. See U.S. Dep't of Homeland Security Delegation No. 0150.1 (effective Mar. 1, 
2003). 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
not establish that it timely and properly filed its previous motion, the AAO would have dismissed the 
current motion even if it had been timely and properly filed. 
Motions in immigration proceedings are disfavored. See INS v. Doherty, 502 U.S. 314, 323 (1992) 
(citing INS v. Abudu, 485 U.S. 94, 110 (1988)). A party seeking to reopen a proceeding bears a "heavy 
burden." !d. 
In visa petition proceedings, a petitioner must establish eligibility for the immigration benefit sought. 
Section 291 of the Act, 8 U.S.C. § 1361; Matter ofOtiende, 26 I&N Dec. 127, 128 (BIA 2013). The 
instant petitioner has not sustained that burden. Accordingly, the motion will be dismissed, the 
proceedings will not be reconsidered, and the previous decisions of the director and the AAO will not 
be disturbed. 
ORDER: The motion is dismissed.