dismissed EB-2 Case: Unknown

(b)(6)
DATE: FEB 2 1 2014 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigr ation Servic es 
Administrative Appeals Office (AAO) 
20 Massachus etts Ave ., N.W ., MS 2090 
Was hington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
OFFICE: NEBRASKA SERVICE CENTER 
PETITION: Immigrant Petition for AJien Worker as a Member of the Professions Holding an Advanced 
Degree or an AJien 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 (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 Jaw 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, 
&", z 4' ~,.. 
Ron....,..RO~nberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The preference visa petition was denied by the Director , Nebraska Service Center 
(the director). A subsequent appeal was dismissed by the Administrative Appeals Office (AAO). The 
matter is now before the AAO on a motion to reopen and reconsider. 1 The motion will be dismissed 
pursuant to 8 C.P.R.§§ 103.5(a)(l)(i), 103.5(a)(l)(iii)(C), 103.5(a)(3) , and 103.5(a)(4). 
The AAO finds that the petitioner has not filed a proper motion to reopen or reconsider. The Form I-
290B was not accompanied by any new evidence or arguments based on precedent decisions. A request 
for motion must meet the regulatory requirements of a motion to reopen or reconsider at the time it is 
filed; no provision exists for U.S. Citizenship and Immigration Services (USCIS) to grant an extension 
in order to await future correspondence that may or may not include evidence or arguments . The 
regulation at 8 C.P.R.§ 103.5(a)(2) states, in pertinent part, that "[a] motion to reopen must state the 
new facts to be provided in the reopened proceeding and be supported by affidavits or other 
documentary evidence." Based on the plain meaning of "new," a new fact is found to be evidence that 
was not available and could not have been discovered or presented in the previous proceeding. 2 In this 
matter, the petitioner presented no facts or evidence on motion that may be considered "new" under 
8 C.P.R.§ 103.5(a)(2) and that could be considered a proper basis for a motion to reopen. 
Moreover, the AAO will not consider the additional evidence submitted by the petitioner on November 
7, 2013, 62 days after the AAO 's September 6, 2013 decision .3 The regulations at 8 C.P.R. 
§ 103.5(a)(l)(i) require that motions to reopen or reconsider be filed within 30 days of the 
underlying decision, except that failure to timely file a motion to reopen may be excused in the 
discretion of users where it is demonstrated that the delay was reasonable and was beyond the 
affected party's control. The petitioner has not established that such an exception is warranted here. 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 allow counsel to 
submit evidence beyond the 30 day period allowed for motions to reopen. The cover page of the 
AAO's September 6, 2013 decision clearly instructed the petitioner that it may file either a motion to 
1 On the Form I-290B submitted on October 9, 2013, counsel checked Box B, which states "I am 
filing an appeal, " and the accompanying narrative states that a brief and additional evidence will be 
submitted in support of the "appeal." It is noted that the AAO does not exercise appellate jurisdiction 
over its own decisions. The AAO exercises appellate jurisdiction over only the matters described at 
8 C.P .R. § 103.l(f)(3)(iii) (as in effect on February 28, 2003). See DHS Delegation Number 
0150 .l(effective March 1, 2003) . An appeal of an AAO appeal is not properly within the AAO's 
jurisdiction. However, because the petitioner char acterized its filing as a "motion " on subsequently 
filed documentation it will be accepted as one despite the incorrect box being checked on the form. It 
is noted that the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative , 
accompanying the motion was not signed by a representative of the petitioner and was signed by 
counsel on behalf of the beneficiary; however, a valid Form G-28 was filed with the appeal below. 
2The word "new" is defined as "1. having existed or been made for only a short time ... 3. Just 
discovered , found , or learned <new evidence> . ... " Webster's II New Riverside University Dictionary 
792 (1984)(emphasis in original). 
3 Counsel asserts that a brief was submitted to the AAO on June 1, 2013, however the record does 
not contain the brief and there is no evidence on motion that this correspondence was sent to or 
received by the AAO. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
reopen or a motion to reconsider the decision pursuant to the requirements found at 8 C.F.R. § 103.5, 
and that any motion must be filed with the office that originally decided the case within 30 days of 
the decision that the motion seeks to reconsider or reopen as required by 8 C.F.R. § 103.5(a)(1)(i). 
Furthermore, the motion shall be dismissed for failing to meet an applicable requirement. The 
regulation at 8 C.P.R. §§ 103.5(a)(1)(iii) lists the filing requirements for motions to reopen and 
motions to reconsider. Section 103.5(a)(1)(iii)(C) requires that motions 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." In this matter, the motion does not contain the statement required by 
8 C.F.R. § 103.5(a)(1)(iii)(C). The regulation at 8 C.P.R. § 103.5(a)(4) states that a motion which 
does not meet applicable requirements must be dismissed. Therefore, because the instant motion did 
not meet the applicable filing requirements listed in 8 C.P.R. § 103.5(a)(1)(iii)(C), it must also be 
dismissed for this reason. 
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 motion, the movant has not met that burden. The motion 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; Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). The petitioner has not 
sustained that burden. Accordingly, the motion will be dismissed, the proceedings will not be reopened 
or reconsidered, and the previous decisions of the director and the AAO will not be disturbed. 
ORDER: The motion is dismissed.