dismissed EB-2 Case: Unknown

1'.: ,.'" 
{:::'::-/2~~:J:'·l 
DATE: .lU~ \ 8 20\2 
INRE: 
OFFICE: NEBRASKA SERVICE CENTER 
U.S. Department of Homeland Security 
u.s. Citi7t~n~hip and Immigration Services 
Administrative !\ppeals Office (AAO) 
20 Massachusells Ave., N.W., MS 2090 
Washington, DC 20:=;2<]·2090 
u.s. Citizenship 
and Immigration 
Services 
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 he 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 with 
the field office or service center that originally decided your case by filing a Form 1-290B, Notice of Appeal 
or Motion, with a fee of $630. The specific requirements for filing such a motion can be found at H C F.R. 
§ 103.5. Do not file any motion directly with the AAO. Please be aware that 8 C.F.R. § 103.S(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, 
~~'A~ ~erry RheD -- - • ~ 
Chief, Administrative Appeals Office 
www.uscis.gov 
Page 2 
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) subsequently rejected the appeal. The matter is 
now before the AAO on a motion to reconsider. The AAO will dismiss the motion. 
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 
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 applicable requirements shall be 
dismissed. 8 C.F.R. § 103.5(a)(4). 
In its rejection notice of September 22, 2011, the AAO stated: 
Under the U.S. Citizenship and Immigration Services (USCIS) regulation at 8 C.F.R. 
§ 292.4(a) ... , if an attorney files an appeal with the Administrative Appeals Office, 
the filing must include a newly executed Form G-28 Notice of Entry of Appearance 
as Attorney or Representative .... 
The petitioner filed the Form 1-140 on July 30, 2009, with a Form G-28 dated 
July 24, 2009, Banta Immigration Law as the petitioner's 
attorney of record. the petition on May 27, 2010. Another 
attorney with the same firm, filed the appeal on June 24, 2010, 
but the filing did not include a new Form G-28 as required. Instead, the petitioner 
submitted a photocopy of an earlier Form G-28 from managing 
partner of Banta Immigration Law, prepared in conjunction with a different petition. 
Under the regulation at 8 C.F.R. § 103.3(a)(2)(v)(A)(2), if an appeal is otherwise 
properly filed without a Form G-28, then USCIS must contact the attorney and 
attempt to obtain the required form. Therefore, on August 31, 2011, the AAO 
to submit the required form within ten (10) calendar days .... 
The allotted time has elapsed, and the AAO has received no response from _ 
_ or any other attorney at the firm. 
Because an attorney filed the appeal without a new, properly executed Form G-28, 
the regulation at 8 C.F.R. § 103.3(a)(2)(v)(A)(2)(i) requires the AAO to reject the 
appeal. 
The petitioner's present attorney of record is the managing partner of the law firm that employed_ 
~nd_. On motion, counsel does not contest any of the tacts stated in the AAO's 
September 2011 rejection notice, and counsel does not dispute that a newly executed Form G-28 was 
required on appeal. Counsel acknowledges not respond" to the AAO's request 
for a new Form G-28. Counsel explains had left the firm by the time of the AAO's 
· . 
Page 3 
August 2011 request, and asserts: "Had this matter been properly brought to my attention, 1 would have 
explained the circumstances to the AAO." 
Regarding the initial tiling of the appeal, counsel claims: • . .. had signed the 1-290B 
form to appeal the denial it. When I discovered that the I-290B form had not been 
filed and furthermore, had not obtained a G-28 form from the petitioner, I signed and 
included in the package a G-28 form .... The NSC [Nebraska Service Center] Director obviously found 
my G-28 acceptable." 
The record shows that present counsel _) did not sign a new Form G-2il to accompany the 
appeal. Rather, the Form G-28 that accompanied the appeal was a photocopy of a Form G-28 that had 
_ had previously signed and dated May 17,2010. That photocopy shows a USCIS receipt 
~ dated June 24, 2010, at il:OO a.m., the same date and time stamped on the Form I-290B. _ 
_ had originally signed that Form G-28 to accompany another petition filed by the same petitioning 
employer on May 18, 2010. If the director "found [that] G-28 acceptable," the director did so in error. 
Counsel has not disputed the basic facts underlying the AAO's rejection notice: the appeal did not 
include a new Form G-28 signed by an authorized official of the petitioning entity and by •••••• 
(the party who signed the appeal form), and the AAO received no response when it requested that 
required form. Without that Form G-2il, the AAO had no authority to accept the appeal as properly 
filed, and the regulations eited above therefore compelled the rejection of the appeal. 
In an effort to show that the AAO based its decision on an incorrect application of law or USCIS policy, 
counsel quotes the USCIS regulations at il C.F.R. §§ 103.3(a)(2)(v)(A)(2)(ii) and (iii). To provide 
context, the AAO will here quote the regulation at il C.F.R. § 103.3(a)(2)(v)(A)(2) in full, including all 
three subclauses: 
(2) Appeal by attorney or representative without proper Form G-2il-
(i) General. If an appeal is filed by an attorney or representative without a 
properly executed Notice of Entry of Appearance as Attorney Or Representative 
(Form G-28) entitling that person to file the appeal, the appeal is considered 
improperly filed. In such a case, any filing fee the Service has accepted will not 
be refunded regardless of the action taken. 
(ii) When favorable action warranted. If the reviewing official decides 
favorable action is warranted with respect to an otherwise properly filed appeal, 
that official shall ask the attorney or representative to submit Form G-2il to the 
official's office within 15 days of the request. If Form G-28 is not submitted 
within the time allowed, the official may, on his or her own motion, under Sec. 
103.5(a)(5)(i) of this part, make a new decision favorable to the affected party 
without notifying the attorney or representative. 
Page 4 
(iii) When favurable actiun not warranted. If the reviewing official decides 
favorable action is not warranted with respect to an otherwise properly filed 
appeal, that official shall ask the attorney or representative to submit Form G-Z8 
directly to the AAU. The official shall also forward the appeal and the relating 
record of proceeding to the AAU. The appeal may be considered properly filed 
as of its original filing date if the attorney or representative submits a properly 
executed Form G-Z8 entitling that person to file the appeal. 
Counsel asserts that the term "reviewing official" in the above regulations "obviously refers to the 
Director of the Service Center receiving the appeal, or hislher designee." Therefore, contends counsel, 
the obligation to request a new Form G-Z8 rested with the director, not the AAO, and thus "the AAO 
improperly, and without legal authority, instructed __ ... to submit a properly executed Form 
G-28." 
Counsel correctly notes that the AAO, rather than the director, requested the Form G-Z8, but does not 
explain why that fact should nullify the AAO's request or mitigate subsequent events (or the lack 
thereof). The regulation at § 103.3(a)(Z)(v)(A)(2)(i) clearly requires a Form G-Z8 for the attorney filing 
the appeal, in this case_ an older, photocopied Form G-Z8 for a different attorney does not 
satisfy any part of that requirement. The director's failure to notice this deficiency does not constitute a 
binding stipulation on all of USCIS to consider the appeal to have been properly filed. It would be 
absurd to suggest that USCIS or any agency must treat acknowledged errors as binding precedent. 
Sussex Engg. Ltd. v. Muntgumery, 8Z5 F.Zd 1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 
(1988). 
The AAO could have remanded the appeal to the director, with instructions for the director to request 
the proper Form G-Z8, but issued the request itself in the interest of efficient and expeditious processing 
of the appeal. Counsel submits no evidence to show that his firm would have submitted a new Form 
G-Z8 from __ • but only if that request had come from the director instead of the AAO. 
Counsel also protests that the AAO "erred again by giving only 10 calendar days" for the firm to submit 
the Form G-Z8 from _. Counsel observes that the regulation at § 103.3(a)(Z)(v)(A)(2)(iL) 
allows a IS-day response period. Counsel does not show, however, that this five-day difference is what 
prevented counsel from the required Form G-Z8 from _ or even from providing 
an explanation departure from the firm. Therefore, counsel has not shown that 
the ten-day response period in any way prejudiced what would otherwise have been a timely and 
complete response to the AAO's August 31, ZOl1 notice. 
Counsel notes that, if USCIS does not contemplate favorable action on appeal, the regulation at 
§ 103.3(a)(Z)(v)(A)(2)(iii) includes "[n]o regulatory time limit, during which the new Form G-Z8 was to 
be submitted to the AAO." The apparent implication is that a given petitioner should have an indefinite 
period of time in which to execute and submit the Form G-Z8. The AAO rejects this interpretation 
'. 
Page 5 
outright; USCJS will not hold an appeal in abeyance, potentially for months or years, waiting for a 
requested Form G-28 that the regulations require. 
The motion includes a newly-executed Form G-28, naming _as the petitioner's attorney of 
record. did not sign the initial Form J-290B Notice of Appeal, and therefore his new Form 
G-28 does not remedy the original deficiency that led to the rejection of the appeal. Furthermore, the 
AAO had already provided counsel's firm an opportunity to submit the Form G-28. Counsel repeatedly 
acknowledges that there was no response to the request. Therefore, counsel's firm forfeited the 
opportunity to resolve the matter in a timely manner. The fact that the AAO, rather than the director, 
issued the request did not in any way absolve counsel of the need to respond to the request, or grant 
counsel an endless span of time in which to address it. 
Counsel has not shown that the AAO's decision was incorrect based on the evidence of record at the 
time of the initial decision. Therefore, the filing does not meet the requirements of a motion to 
reconsider, and the AAO must dismiss the motion as required by 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion is dismissed. The AAO's rejection notice of September 22, 2011 IS 
undisturbed.