dismissed EB-2 Case: Unknown

(b)(6)
( 
DATE: 
AUG 2 7 2013 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department ofHomeland Security 
U.S. Citizenship and Immigr ation Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington , DC 20529-2090 
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: 
INSTRUCfiONS: 
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.P.R . § 103.5. Do not file a motion directly with the AAO. 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The petitioner appealed this denial to the Administrative Appeals Office (AAO), and, on 
September 7, 2012, the AAO dismissed the appeal. Counsel to the petitioner filed a motion to 
reconsider the AAO decision in accordance with 8 C.F.R. § 103.5. The AAO granted the motion, 
but dismissed the appeal again on the merits on May 22, 2013. The petitioner has now filed a 
second motion1 to reopen and reconsider the AAO's decision. The motion will be dismissed 
pursuant to 8 C.F.R. §§ 103.5(a)(1)(i), 103.5(a)(1)(iii)(C), 103.5(a)(3), and 103.5(a)(4). 
United States Citizenship and Immigration Services (USCIS) regulations require that motions to 
reconsider be filed within 30 days of the underlying decision. 8 C.F.R. § 103.5(a)(1)(i). Similarly, 
USCIS regulations require that motions to reopen 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 USCIS 
where it is demonstrated that the delay was reasonable and was beyond the affected party's control. 
!d. In this matter, the motion was initially submitted on June 25, 2013 and rejected. The initial 
submission was received 34 days after the AAO's May 22, 2013 decision, and accordingly, was 
untimely. The petitioner resubmitted the documentation, and the Form I-290B was accepted for 
filing on July 9, 2013. The filing date is the actual date of receipt at the location designated for 
filing. 8 C.F.R. § 103.2(a)(7)(i). The appeal/motion must be signed and submitted with the correct 
fee. !d. The record indicates that the AAO's decision was mailed to both the petitioner at its 
business address and to its counsel of record. As the record does not establish that the failure to file 
the motion within 30 days of the decision was reasonable and beyond the affected party's control, the 
motion is untimely and must be dismissed for that reason. 
Furthermore, the motion shall be dismissed for failing to meet applicable requirements. The 
regulation at 8 C.F.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). Additionally, in order for a motion to be considered as such, the 
evidence and/or brief must be submitted at the time of the filing. Nothing in the regulations allows 
later submission of the brief or evidence. The regulation at 8 C.F.R. § 103.5(a)(4) states that a 
1 The petitioner actually checked box 2.B on the Form I-290B, Notice of Appeal or Motion, dated 
June 24, 2013, indicating that the petitioner was filing an appeal and would be filing a brief and/or 
additional evidence within 30 days. However, 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.l(effective March 1, 2003). An appeal of an AAO appeal is not properly within the AAO's 
jurisdiction. Thus, the Form I-290B, as an appeal, would be rejected on this basis, and because the 
appeal would still be untimely under 8 C.F.R. §§ 103.3(a)(2)(i) and 103.8(b). For purposes of this 
decision, the AAO will refer to the filing as a motion. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
motion which does not meet applicable requirements must be dismissed. Here, the petitioner also 
did not submit the supporting brief and evidence until July 25, 2013, one month after the initially 
rejected submission of the motion. Therefore, because the instant motion did not meet the applicable 
filing requirements for a motion, 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. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. 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.Z 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. 
2 
The AAO notes that the petitioner has filed a subsequent petition, utilizing the labor certification 
in this matter, on behalf of the same beneficiary, which has been approved by USCIS under the 
professional category pursuant to section 203(b)(3)(A)(ii) of the Act.