dismissed EB-2 NIW Case: Biomedical Research

(b)(6) U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
DATE: JUN 1 0 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
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 be 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 in 
accordance with the instructions on Form I-290B, Notice of Appeal or Motion, with a fee of $630. The 
specific requirements for filing such a motion can be found at 8 C.F.R. § 103.5. Do not file any motion 
directly with the AAO. Please be aware that 8 C.F.R. § 103.5(a)(l)(i) requires any motion to be filed within 
30 days of the decision that the motion seeks to reconsider or reopen. 
Thank you, 
~~~~~"--~~ 
bon Rosenber~~ 
Acting Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) dismissed the petitioner's appeal from that 
decision. The matter is now before the AAO on a motion to reopen and reconsider. The AAO will 
dismiss the motion. 
The petitioner seeks classification under section 203(b )(2) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree . The 
petitioner seeks employment as a biomedical researcher. At the time of filing, the petitioner was a part­
time "volunteer clinical research/data assistant" at The petitioner 
asserts that an exemption from the requirement of a job offer, and thus of a labor certification, is in the 
national interest of the United States. The director found, and the AAO agreed, that the petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that the 
petitioner has not established that an exemption from the requirement of a job offer would be in the 
national interest of the United States. 
On motion, the petitioner submits a statement and copies of two electronic mail messages. 
Any motion to reconsider an action by USCIS filed by an applicant or petitioner must be filed within 30 
days of the decision that the motion seeks to reconsider. Any motion to reopen a proceeding before the 
Service filed by an applicant or petitioner, must be filed within 30 days of the decision that the motion 
seeks to reopen, except that failure to file before this period expires, may be excused in the discretion of 
the Service where it is demonstrated that the delay was reasonable and was beyond the control of the 
applicant or petitioner. 8 C.F.R. § 103.5(a)(l)(i) . 
A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported 
by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). 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 USCIS 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). 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability.-
(A) In General. - Visas shall be made available ... to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy , cultural or educational interests, or welfare 
of the United States , and whose services in the sciences , arts, professions, or business 
are sought by an employer in the United States. 
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(B) Waiver of Job Offer-
(i) ... the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The petitioner filed the Form I-140 petition on June 27, 2011. The director denied the petition on 
April 26, 2012, and the AAO dismissed the petitioner's appeal on November 14, 2012. In that 
decision, the AAO stated: 
The record establishes that the petitioner is a capable researcher who has made a 
favorable impression on his collaborators, employers and mentors. The intrinsic 
merit and national 
scope of biomedical research are not in dispute. Nevertheless, the 
evidence submitted does not show that the petitioner's work stands out from that of 
his peers. In the absence of evidence of publication, the record does not show that the 
petitioner's work has even come to the attention of other researchers except those 
who attended certain conferences. Witnesses have asserted that the petitioner's work 
may affect public health planning measures and treatment of heart attack patients, but 
the record does not show that the petitioner's work has yet had those effects. 
Speculation about the possible future impact of the petitioner's work is conjecture, 
not evidence, and cannot establish eligibility for the national interest waiver. 
The regulation at 8 C.P.R. § 103.5(a)(1)(i) affords the petitioner 30 days to file a motion to reopen 
and/or reconsider the AAO's decision. Because the AAO served its notice by mail, the regulation at 
8 C.P.R. § 103.8(b) added three days to the response period. Under the regulation at 8 C.P.R. 
§ 103.2(a)(7), the filing date is the date USCIS received the motion, not the date of mailing. 
Because the AAO issued its decision on November 14, 2012, the filing deadline for the petitioner's 
motion was 33 days later, December 17, 2012. The petitioner prepared Form I-290B, Notice of 
Appeal or Motion, on December 12, 2012, but he did not file the motion at that time. One of the 
exhibits submitted on motion is dated December 20, 2012, three days after the filing deadline, and 
the petitioner mailed the motion in an envelope postmarked December 24, 2012. USCIS received 
the motion on December 31, 2012, two weeks after the filing deadline. 
The regulation at 8 C.P.R. § 103.5(a)(l)(i) allows for the acceptance of an untimely motion to reopen 
under some circumstances, but there is no comparable allowance for an untimely motion to 
reconsider. The AAO must, therefore, dismiss the motion to reconsider as untimely. 
With respect to the concurrent motion to reopen, the cited regulation states that untimely filing may 
be excused in the discretion of users where it is demonstrated that the delay was reasonable and was 
beyond the control of the applicant or petitioner. In this instance, the petitioner had prepared the motion 
during the allotted time, but failed to mail it for 12 days after he signed and dated it. Because the 
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petitioner wrote his statement before the filing deadline, that statement included no explanation as to 
why the delay in filing was beyond his control. The AAO will, therefore, dismiss the motion to reopen 
as untimely. 
The petitioner's submission on motion includes printouts of two electronic mail messages from the 
editorial office of the The petitioner states that these messages constitute 
"preliminary corroborative testimonial and documentary evidence in support of [his] claims as a 
researcher in the medical profession." 
The first printout, dated November 14, 2012, confirmed that a manuscript, naming the petitioner as a 
co-author, "has been submitted ... to the The second message, dated December 
20, 2012, indicated 
that the manuscript "has been proceeded [sicl to peer review and is currently being 
given full consideration for publication in the 
The messages do not show that the AAO was incorrect in referring to "the absence of evidence of 
publication." The new printouts show that the petitioner submitted a manuscript while his appeal was 
already pending. In the dismissal notice, the AAO cited a regulation and a precedent decision: 
An applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the benefit request. 8 C.F.R. § 103.2(b)(1). USCIS 
cannot 
properly approve the petition at a future date after the petitioner or beneficiary 
becomes eligible under a new set of facts. See Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971). 
The newly submitted printouts do not show that the petitioner was eligible for the requested benefit at 
the time he filed the petition on June 27, 2011. The submission of a manuscript in November 2012 
cannot show that the petitioner was eligible for the benefit sought in July 2011, or that the director or 
the AAO made incorrect decisions based on the evidence available at the time. 
The petitioner's motion alleges no error in the AAO's decision, and it does not show that the AAO 
made the wrong decision based on the evidence available to the AAO at the time of its decision. 
Therefore, the motion, even if it were timely, does not the requirements of a motion to reconsider under 
the regulation at 8 C.F.R. § 103.5(a)(3). 
The printouts submitted on motion, while "new" in the sense that they did not exist at the time of the 
AAO's decision, do not establish the petitioner's eligibility at the time he filed the petition. See 
8 C.F.R. § 103.2(b)(1). The AAO had previously advised the petitioner that he had to establish 
eligibility at the time of filing. 
Because the petitioner's filing does not meet the requirements of a motion to reopen or a motion to 
reconsider, the USCIS regulation at 8 C.F.R. § 103.5(a)(4) requires the AAO to dismiss the motion. 
ORDER: The motion is dismissed.