dismissed EB-2 NIW Case: Animal Science

U.S. Citizenship 
and Immigration 
Services 
Non-Precedent Decision of the
Administrative Appeals Office 
Date: NOV. 07, 2023 In Re: 28744332 
Motion on Administrative Appeals Office Decision 
Form 1-140, Immigrant Petition for Alien Workers (National Interest Waiver) 
The Petitioner, an animal science specialist, seeks second preference immigrant classification as a 
member of the professions holding an advanced degree professional or an individual of exceptional 
ability in the sciences, arts, or business, as well as a national interest waiver of the job offer 
requirement attached to this EB-2 immigrant classification. See Immigration and Nationality Act (the 
Act) section 203(b )(2), 8 U.S.C. § 1 l 53(b )(2). 
The Director of the Texas Service Center denied the petition, concluding that the Petitioner qualifies 
for the EB-2 classification as a member of the professions holding an advanced degree, but did not 
establish that that a waiver of the required job offer, and thus of the labor certification, would be in 
the national interest. We summarily dismissed the appeal as the Petitioner did not identify any specific 
legal or factual error in the Director's decision on his Form 1-290B, Notice of Appeal or Motion, and 
did not submit his brief and/or additional evidence to us within 30 days of filing the appeal as he 
indicated on his Form 1-290B. The matter is now before us on a combined motion to reopen and 
reconsider. 
The Petitioner bears the burden of proof to demonstrate eligibility by a preponderance of the evidence. 
Matter of Chawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will dismiss the 
motion. 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). A motion to reconsider must establish that our prior decision was based on an incorrect 
application oflaw or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. 8 C.F.R. § 103.5(a)(3). Our review on motion is limited to 
reviewing our latest decision. 8 C.F.R. § 103.5(a)(l)(ii) . We may grant motions that satisfy these 
requirements and demonstrate eligibility for the requested benefit. 
On motion to reopen, the Petitioner claims that the brief was "timely filed but rather sent to the wrong 
USCIS address instead of the AAO" and that this "clerical error" is a proper cause for reopening the 
proceedings. With the motion, the Petitioner submits his appeal brief and additional evidence he 
previously intended to submit to us, along with a copy of FedEx tracking label for a proof of delivery. 
However, the tracking label shows that the Petitioner incorrectly sent the brief and evidence to the 
filing location of Form I-290B instead of sending them directly to our office. The Form I-290B 
instructions specifically require that any appeal brief and/or evidence submitted after filing a Form 
I-290B "must be sent directly to the AAO." See USCIS Form I-290B, Instructions for Notice of 
Appeal or Motion, at 6 (rev. 12/02/19). 
The Petitioner's new evidence and explanations on motion therefore do not show that he properly filed 
his appeal brief and evidence with us prior to our adjudication of his appeal. Consequently, our 
summary dismissal of the appeal according to 8 C.F.R. § 103.3(a)(l)(v) was proper, and the Petitioner 
has not demonstrated that reopening is warranted. 
On motion to reconsider, the Petitioner does not dispute or assert any error in our prior determination 
that he did not submit the brief and/or additional evidence within 30 days and that we did not have his 
promised brief and documents when we adjudicated the appeal. Instead, the Petitioner relies on the 
motion regulations to assert the delay or failure in properly filing the appeal brief should be excused. 
However, the motion regulations referenced by the Petitioner do not relate to his circumstances. While 
8 C.F.R. § 103.5(a)(l)(i) allows an exception to a late filing of a motion to reopen where the delay 
was reasonable and beyond one's control, the issue here involves the Petitioner's appeal and whether 
an appeal brief and evidence were properly filed pursuant to 8 C.F.R. § 103.3(a)(2)(i) (stating that the 
affected party must submit the complete appeal including any supporting brief as indicated in the 
applicable form instructions within 30 days after service of the decision). 
Furthermore, although the regulations, for good cause shown, permit us to grant more time to submit 
an appeal brief upon a written request for additional briefing time, the record does not show that the 
Petitioner had ever sought such request with us, that we granted it, and he then submitted his appeal 
brief directly to us, as required. See 8 C.F.R. § 103.3(a)(2)(vii), (viii) (if additional time for the 
filing of a brief on appeal is given, the affected party shall submit the brief directly to the AAO). 
Consequently, the Petitioner has not demonstrated that our previous decision was based on an 
incorrect application of law or policy and that our decision was incorrect based on the evidence 
before us at the time. The Petitioner, therefore, has not met the requirements of a motion to 
reconsider. 
Although the Petitioner has submitted additional evidence in support of the motion to reopen, he did 
not demonstrate on motion that he followed form instructions and mailed his brief and additional 
evidence to the correct mailing address. On motion to reconsider, the Petitioner has not established 
that our previous decision was based on an incorrect application of law or policy at the time we issued 
our decision. Therefore, the motion will be dismissed. 8 C.F.R. § 103.5(a)(4). 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
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