dismissed EB-2 NIW Case: Arts

(b)(6)
DATE: 
SEP 1 8 2.013. 
INRE: Petitioner : 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S . CitizeJ.lship and Immigration Services 
Adm.inistJ:ative Appeals Office (AAO) 
20 Massach(Jseus Ave._, N.w.,:Ms 2090 
Washington , DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: !minigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 403(b )(Z) of the· lmiJligtation 
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 . 
Thank you, 
·~~ 
.Aton Rosenberg · 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment,..based imtnigt(lllt visa 
petition. The AAO rejected the petitioner's appeal as untimely. The matter is now before the AAO on 
a motion to reopen. The AAO will dismiss the motion. 
The petitioner seeks classification under section 203(b)(2) of the hnmigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as an alien of exceptional ability in the arts. The petitioner asserts that an 
exemption from the requirement of a job offer is in the national interest of the Unite(! States. The 
director found that the petitioner had not established eligibility for the classification sought, or for the 
exemption from t11e job offer requirement. 
The petitioner filed the Form 1-140 petition on January 4, 2012. The director denied the petition on 
January 9, 2013 and notified the petitioner that he had 33 days to file an appeal, under the USCIS 
regulations at 8 C.P.R. §§ 103.3(a)(2)(i) and 103.8(b). USCIS received tbe appe::1l on Friday, 
Pebru,ary 15, 2013, 37 days after the decision was issued. 
On June 10, 2013, the AAO rejected the appeal as untimely filed, as required under the USCIS 
regulation at 8 C.P.R. § 103.3(a)(2)(v)(B)(l). The AAO also stated that "counsel jndicated that a 
brief would be forthcoming within thirty days," but the record contained no such brief, and therefore 
"the AAO would have summarily dismissed the appeal, had it been timely filed.;' 
The AAO did not state that the petitioner could file a motion on the rejection (as opposed to the 
dismi_ssal) ofan appeal. The petitioner, through counsel, nevertheless filed a motion to reopen. On 
motion, the petitioner submits a copy of an appellate brief. Counsel acknowledges that ''the brief was 
incorrectly mailed to the Phoenix, Arizona 290B address rather than the Administrative Appeal's [sic] 
Office,'' and asks that the brief receive consideration on motion. 
The submission of the motion attempts to address the AAO's observation that the record did not contain 
an appellate brief. Counsel states: "The Administrative Appeal's [sic] Office ... rejected the appeal, 
because the supplementary brief was never received by the office.;' The AAO, however, did not reject 
or sliillmarily dismiss the appeal based on the missing brief, Rather, the AAO rejected the appeal as 
untimely, and stated that, because of the missing brief, the AAO would have summarily dismissed the 
appeal even if it had been timely. 
The motion does not address or overcome the stated basis for the rejection of the appeal (i.e., its 
untimely filing). Tl).erefore; to reopen the proceeding in order to incorporate the brief would serve no 
practical purpose, even if the AAO had indicated that it would entertain a motion to reopen a rejected 
appeal (which it did not do). 
ORDER: The motion is dismissed.